State v. Booth

• Decision Date: 10 June 1980
• Docket Number: No. 79-1548,79-1548
• Citation: 98 Wis.2d 20,295 N.W.2d 194
• Parties: , 19 A.L.R.4th 498 STATE of Wisconsin, Plaintiff-Appellant, v. Randy J. BOOTH, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 194

295 N.W.2d 194

98 Wis.2d 20, 19 A.L.R.4th 498

STATE of Wisconsin, Plaintiff-Appellant, v. Randy J. BOOTH, Defendant-Respondent.

No. 79-1548.

Court of Appeals of Wisconsin.

Argued March 28, 1980.

Opinion Released June 10, 1980.

Opinion Filed June 10, 1980.

John W. Calhoun, Asst. Atty. Gen., argued for appellant; Bronson C. La Follette, Atty. Gen., on brief.

Daniel P. Fay, Pewaukee, for defendant-respondent; Fay & Wuebben, Pewaukee, on brief.

Before VOSS, P. J., and BROWN and BODE, JJ.

BODE, Judge.

The State appeals the order of the circuit court suppressing the results of a breathalyzer test administered to defendant Randy Booth. The suppression order was based upon the circuit court's finding that the ampoule used in the breathalyzer test constituted material evidence and that its destruction by the State denied defendant his constitutional right to due process of law. ¹ We agree and affirm the suppression order.

On August 23, 1978, the defendant was arrested for operation of a motor vehicle while under the influence of an intoxicant. A breathalyzer test administered shortly thereafter indicated defendant's blood alcohol level to be 0.16 percent. On October 10, 1978, defendant filed a request for discovery specifically seeking the ampoule used in the test administered to him. On October 12, 1978, defendant moved to suppress the results of the test because the ampoule used had been destroyed immediately following administration of the test.

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 by establishing a correlation between the test ampoule and a reference ampoule which is identical in specification. It is essential to the accuracy of the test that a quantity of exactly three cubic centimeters of the solution be present in each. This is checked by a gauge in the machine and a test ampoule not meeting the requirement is discarded. People v. Hitch, 12 Cal.3d 641, 644, 527 P.2d 361, 363, 117 Cal.Rptr. 9, 11 (1974).

The State purchases the breathalyzer ampoules from a private manufacturer in batches of 10,000. A total of six ampoules in every 10,000 are analyzed by the State to determine if they contain the required volume and concentration of chemical solution.

An evidentiary hearing on defendant's motion was held on January 15, 1979. Both the State and defendant presented expert witnesses who testified as to the desirability of preserving the test ampoule and the feasibility of retesting the ampoule to determine if the original breathalyzer reading was accurate. Based on the expert testimony adduced, the circuit court made the following findings of fact:

(1) Retesting of an ampoule cannot recreate the evidentiary breathalyzer test results.

(2) Capping a used ampoule is not technically difficult or costly.

(3) The contents of a capped ampoule can be remeasured and can be tested to determine whether the proper chemicals were present and whether they were present in the proper concentrations and proper volume.

(4) The requisite volume of three cubic centimeters of solution in the test ampoule is essential to the accuracy of the breathalyzer test.

(5) It is always possible to determine whether or not there was a 0.025 percent potassium dichromate solution in the test ampoule.

(6) It is possible that the solution in a capped used test sample would be subject to continued chemical change with the passage of time; nevertheless, it is possible to restandardize the breathalyzer test up to 30 days after the test. ²

"On review of an order suppressing evidence, the findings of fact, if any, of the trial court will be sustained unless against the great weight and clear preponderance of the evidence." Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461, 467 (1977). The aforementioned findings are amply supported by the testimony offered at the suppression hearing. Both experts agreed that the volume of the solution and the particular concentration of chemicals in the ampoule are critical to the accuracy of the breathalyzer test. If the solution is less than three cubic centimeters, the test reading will be improperly high. If a used test ampoule contains no acetic acid, that absence indicates that no ethyl alcohol (from the suspect's breath sample) passed through the breathalyzer during the test. ³ Similarly, the absence of chromium sulfate in the ampoule would mean that no reaction from alcohol had taken place. ⁴ Furthermore, analysis of a tested ampoule would reveal if the solution contained the required 0.025 percent potassium dichromate.

The findings that preservation of the tested ampoule would not be difficult and that the chemicals therein would remain constant long enough for reanalysis are also supported by the expert testimony. A simple capping of the test ampoule would prevent spillage and allow for relatively easy storage. Although the court noted that some chemical change may take place after a period of time, the testimony supports the conclusion that restandardization of the ampoule's contents can be achieved until at least thirty days after the test.

The State does not directly challenge the validity of the findings made by the court. The basis of the appeal is that, notwithstanding the potential for restandardization of the ampoule, its routine destruction by law enforcement officers does not infringe upon any constitutional right of the defendant.

At the outset, we should note what factors are not involved in this appeal. There is no allegation that the destruction of the test ampoule was done in bad faith. An operational checklist provided by the Motor Vehicle Division of the Wisconsin Department of Transportation directs the officer administering the breathalyzer test to dispose of the test ampoule upon completion of the testing process. The officer who destroyed the ampoule used in the defendant's test was merely following the directions provided him. There is also no question that the scientific process of retesting or restandardization of the ampoule will not recreate the original test (i. e., determine what the alcohol weight in defendant's blood was at the time of the original testing). The defendant seeks to analyze the test ampoule's contents only to determine whether it was capable of producing an accurate breathalyzer reading at the time of the test. Finally, we are not here faced with a general or ambiguous discovery request. Defendant's discovery request specifically asked for production of the ampoule used in his breathalyzer test. The ampoule was in the exclusive possession of the State at all material times prior to its destruction. It cannot be said that its existence was at any time unknown to the State or its agents. Thus, the sole question before us is whether the ampoule constitutes sufficiently material evidence to fall within the ambit of a defendant's constitutional right to due process of law. We believe it does.

The State contends that due process is infringed upon only where it is shown that the sought after evidence is favorable to a defendant. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material to the ultimate question of guilt or innocence. The necessity of a defense showing that suppressed evidence is favorable was restated in United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976), where it was noted that "(t)he mere possibility that an item of undisclosed information might have helped the defense . . . does not establish 'materiality' in the constitutional sense." The State, thus, contends that because the defendant has not shown that an analysis of the ampoule's contents would be favorable to him, he has failed to show a violation of any constitutional right.

We could accept the above argument if this were a case involving suppression of known evidence by the prosecution. However, we are here faced with destroyed evidence, the favorability of which to the accused can never be determined. In the post-Brady decisions of the United States Supreme Court concerning a defendant's constitutional right to have access to material evidence, the content of the evidence has been known to the court and the parties. ⁵ Thus, the requirement of Brady and Agurs that a defendant must show the nondisclosed evidence to be exculpatory is entirely reasonable. The reasonableness of such a requirement disappears, however, where the nondisclosed evidence is destroyed. In such a situation, a different rule must apply.

The rule applicable to evidence destruction cases is that a defendant need only show the disposed of evidence was clearly material to the issue of guilt or innocence. This standard was first stated in United States v. Bryant, 439 F.2d 642, 648 (D.C. Cir. 1971), and adopted by the Wisconsin Supreme Court in State v. Amundson, 69 Wis.2d 554, 577-78, 230 N.W.2d 775, 788 (1975). In Bryant, a tape of a phone conversation between the defendant and a narcotics agent was destroyed before trial. The only direct proof of the...