People v. Stark, Docket No. 25182

• Decision Date: 17 January 1977
• Docket Number: Docket No. 25182
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Leo STARK, Defendant-Appellant. 73 Mich.App. 332, 251 N.W.2d 574
• Court: Court of Appeal of Michigan — District of US

Page 574

251 N.W.2d 574

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Leo STARK, Defendant-Appellant.

Docket No. 25182.

73 Mich.App. 332, 251 N.W.2d 574

Court of Appeals of Michigan.

Jan. 17, 1977.

Released for Publication March 21, 1977.

[73 MICHAPP 334] Merdzinski, Kelly, Lynch & Oole by Michael F. Kelly, Grand Rapids, for defendant-appellant.

[73 MICHAPP 333] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Fred R. Hunter, III, Pros. Atty., for plaintiff-appellee.

[73 MICHAPP 334] Before QUINN, P. J., and R. B. BURNS and CAVANAGH, JJ.

R. B. BURNS, Judge.

This appeal presents an issue of first impression in this jurisdiction:

"Subsequent to the administration of a Breathalyzer test, does the routine practice, on the part of law enforcement officials, of discarding the nonreusable ampoules used in the test constitute a constitutionally impermissible suppression of evidence violative of due process of law?"

Defendant contends that the answer to this question is "yes", thus necessitating reversal of his third (felony) conviction of driving under the influence of intoxicating liquor. M.C.L.A. § 257.625; M.S.A. § 9.2325. We disagree, and affirm the conviction.

A clear description of the operation of the Breathalyzer is given by the California Supreme Court in People v. Hitch, 12 Cal.3d 641, 644, 117 Cal.Rptr. 9, 11, 527 P.2d 361, 363 (1974):

"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 [73 MICHAPP 335] by establishing a correlation between the test ampoule and a reference ampoule which is identical in specification."

Defendant-appellant Stark underwent two such tests upon his arrest, the results of which were .22 and .21 (percent by weight of alcohol in the blood) respectively. A level of .10 gives rise to the presumption of intoxication under M.C.L.A. § 257.625a; M.S.A. § 9.2325(1).

Defendant's due process argument is based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and on Hitch, supra. Brady enunciated the basic rule regarding criminal discovery and due process as follows:

"We now hold 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 good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 218. (Emphasis added.)

This due process requirement of disclosure applies to evidence which might lead a jury to entertain a reasonable doubt about a defendant's guilt, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and the test should be "liberally construed" whenever there is substantial room for doubt as to the effect disclosure might have. People v. Eddington, 53 Mich.App. 200, 206, 218 N.W.2d 831, 834 (1974).

The relevance of the critical concepts of materiality and favorability in the context of the Breathalyzer was elaborated upon by the court in Hitch. As to materiality:

"(T)he results of the breathalyzer test by their very [73 MICHAPP 336] nature constitute material evidence on the issue of guilt or innocence upon a charge of drunk driving. * * * Thus * * * evidence substantially affecting the credibility (e. g., the test ampoules) of the results of the test would appear to be material and the suppression of such evidence would deny defendant a fair trial." 12 Cal.3d at 647, 117 Cal.Rptr. at 13-14, 527 P.2d at 365-366. (Emphasis in original.)

As to favorability:

"(W)e are of the view that if, given the availability of the test ampoule and its contents, and the reference ampoule, there is a reasonable possibility that they would constitute favorable evidence on the issue of guilt or innocence, then such evidence must be disclosed." 12 Cal.3d at 649, 117 Cal.Rptr. at 15, 527 P.2d at 367. (Emphasis added.)

The Hitch court then concluded that the findings of the lower court in that case were to the effect that preservation of the ampoules would yield a "reasonable possibility" that they might "impeach the accuracy and credibility of the results of the test", 12 Cal.3d at 649, 117 Cal.Rptr. at 15, 527 P.2d at 367. The court then concurred with United States v. Bryant, 142 U.S.App.D.C. 132, 141, 439 F.2d 642, 651 (1971), that "the duty of disclosure is operative as a duty of preservation", and held (prospectively) that "intentional but nonmalicious" destruction of the Breathalyzer ampoules would require that the results of the Breathalyzer test be excluded from evidence.

Defendant argues that the application of Brady enunciated by the California Supreme Court in Hitch should be adopted by this Court. However, other states have rejected Hitch.

In State v. Bryan, 133 N.J.Super. 369, 374, 336 A.2d 511, 514 (1974), the Superior Court of New [73 MICHAPP 337] Jersey concluded that "(t)he State should not be forced to afford the defendant a second chance to check the workability of the machine when defendant has the opportunity under (the statute) to an independent test". Such an independent test is...