People v. Stark, Docket No. 25182
| Court | Court of Appeal of Michigan (US) |
| Writing for the Court | R. B. BURNS |
| Citation | 251 N.W.2d 574,73 Mich.App. 332 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Leo STARK, Defendant-Appellant. 73 Mich.App. 332, 251 N.W.2d 574 |
| Decision Date | 17 January 1977 |
| Docket Number | Docket No. 25182 |
Page 574
v.
Robert Leo STARK, Defendant-Appellant.
73 Mich.App. 332, 251 N.W.2d 574
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.
Page 575
[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...
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People v. Beckley, Docket Nos. 81583
...333, 239 N.W.2d 604 (1976); Dudek v. Popp, 373 Mich. 300, 129 N.W.2d 393 (1964) (accident reconstruction evidence); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977); Moreman v. Kalamazoo Co. Rd. Comm, 129 Mich.App. 584, 341 N.W.2d 829 (1983) (chemical analysis of blood urine or brea......
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State v. Canaday, No. 45309
...v. Hedrick, 557 P.2d 378 (Colo.1976); People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 (1976); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1976); State v. Hanson, 493 S.W.2d 8 (Mo.App.1973); State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976); State v. Bryan, 133 N......
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State v. Booth, No. 79-1548
...before us. In State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo.1976); and People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977), the requests for production of the ampoule were made eighty-five, ninety and seventy-two days after the tests were tak......
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State v. Helmer, No. 12578
...State v. Teare, 135 N.J.Super. 19, 342 A.2d 556 (1975); State v. Watson, 48 Ohio App.2d 110, 355 N.E.2d 883 (1975); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977); and People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 2 We note that this random test was perform......
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People v. Beckley, Docket Nos. 81583
...333, 239 N.W.2d 604 (1976); Dudek v. Popp, 373 Mich. 300, 129 N.W.2d 393 (1964) (accident reconstruction evidence); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977); Moreman v. Kalamazoo Co. Rd. Comm, 129 Mich.App. 584, 341 N.W.2d 829 (1983) (chemical analysis of blood urine or brea......
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State v. Canaday, No. 45309
...v. Hedrick, 557 P.2d 378 (Colo.1976); People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 (1976); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1976); State v. Hanson, 493 S.W.2d 8 (Mo.App.1973); State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976); State v. Bryan, 133 N......
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State v. Booth, No. 79-1548
...before us. In State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo.1976); and People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977), the requests for production of the ampoule were made eighty-five, ninety and seventy-two days after the tests were tak......
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State v. Helmer, No. 12578
...State v. Teare, 135 N.J.Super. 19, 342 A.2d 556 (1975); State v. Watson, 48 Ohio App.2d 110, 355 N.E.2d 883 (1975); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977); and People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 2 We note that this random test was perform......