State v. Canaday, No. 45309

• Court: United States State Supreme Court of Washington
• Writing for the Court: HOROWITZ; WRIGHT, C. J., ROSELLINI, HAMILTON, STAFFORD, HOROWITZ, UTTER, DOLLIVER and HICKS, JJ., and RYAN
• Citation: 90 Wn.2d 808,585 P.2d 1185
• Decision Date: 02 November 1978
• Docket Number: No. 45309
• Parties: STATE of Washington, Respondent, v. Fay CANADAY, Appellant. CITY OF VANCOUVER, Respondent, v. John V. O'ROURKE, Appellant. CITY OF VANCOUVER, Respondent, v. James R. PLUMLEE, Appellant.

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90 Wn.2d 808 585 P.2d 1185 STATE of Washington, Respondent,
v.
Fay CANADAY, Appellant.
CITY OF VANCOUVER, Respondent,
v.
John V. O'ROURKE, Appellant.
CITY OF VANCOUVER, Respondent,
v.
James R. PLUMLEE, Appellant. No. 45309. Supreme Court of Washington, En Banc. Nov. 2, 1978.

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[585 P.2d 1186] Hemmen, Cohoe, Klavano & Bottiger, by Robert P. Klavano, for petitioners Purdue, et al.

Darrell E. Lee and Steven W. Thayer, for petitioners Canaday, et al.

Christopher T. Bayley, Prosecuting Attorney, and Frederick L. Yeatts, Asst. Chief Criminal Deputy for King County, for respondent State.

Gregory O. DeBay and Roger B. Ley, for respondents Breeden, et al.

Jerry F. King, City Atty., and George A. Riemer, Asst. for respondent City of Vancouver.

Don Herron, Prosecuting Att. Joseph D Mladinou, Senior Deputy for Pierce County, James E. Carty, Prosecuting Att. and Dennis M. Hunter, Deputy for respondent State.

Miles F. McAtee on behalf of Washington State Trial Lawyers Assn., amicus curiae.

Christopher T. Bayley, King County Pros. Atty., Frederick L. Yeatts, Asst. Pros. Atty., Seattle, Hemmen, Cohoe, Klavano & Bottiger, Robert P. Klavano, Tacoma, Darrell E. Lee Law Office, Darrell E. Lee, Steven Thayer, Vancouver, Miles F. McAtee, Seattle, for appellants.

Roger B. Ley, Seattle, Gregory O. DeBay, Federal Way, James Carty, Clark County Pros. Atty., Dennis Hunter, Deputy Pros. Atty., Jerry F. King, City Atty., Vancouver, for respondents.

HOROWITZ, Justice.

Defendants in two of these three consolidated cases appeal from superior court order denying their motions to suppress breathalyzer test results or dismiss the prosecutions on charges of driving while intoxicated. In the third case the State seeks review of a district court order dismissing similar prosecutions.

The three cases all raise the question whether the routine destruction and disposal of breathalyzer test ampoules violates the due process rights of persons taking the test who

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are later prosecuted for driving while intoxicated. Defendants here voluntarily took the breathalyzer test to determine blood alcohol content after being arrested on suspicion of driving while intoxicated. They now seek suppression of the breathalyzer test results or dismissal of the prosecutions on the grounds the State unconstitutionally destroyed the ampoules, which are said to be material evidence helpful to their defense. The Superior Courts of Clark and Pierce counties denied the motions to suppress or dismiss. We affirm these orders. The Federal Way District Court, King County, dismissed the prosecutions. We reverse that judgment and hold that the routine destruction and disposal of used breathalyzer test ampoules does not violate due process.

The relevant facts are common to all defendants. Following their arrests they voluntarily submitted to a test of their blood alcohol content by means of the breathalyzer machine. This procedure is authorized by Washington's Implied Consent Law, RCW 46.20.308. The breathalyzer test yields a reading of the blood alcohol content which is admissible as evidence in any civil or criminal trial where a defendant is alleged to have been driving while under the influence of alcohol. See RCW 46.61.506. Under that statute the test result may create a rebuttable presumption the defendant was intoxicated. The scientific principles underlying the breathalyzer test and the required procedure for its administration have been described by this [585 P.2d 1187] court in the past. See, Schoultz v. Dep't of Motor Vehicles, 89 Wash.2d 664, 574 P.2d 1167 (1978); State v. Baker, 56 Wash.2d 846, 355 P.2d 806 (1960). The test is based on a predictable reaction between alcohol in the subject's breath and a chemical solution contained in a small glass ampoule. A sample of the subject's breath is forced into the ampoule and the resulting chemical reaction is measured by comparing the reacted chemical solution to a nonreacted sample by means of a photo-electric device. The results are calibrated in terms of a percentage of alcohol in the blood. After the officer administering the test has recorded this

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reading the test ampoule is routinely destroyed. It is the destruction and disposal of the test ampoule to which the defendants here object.

The defendants sought discovery of the ampoules used in their tests and, upon the State's failure to produce them, moved for suppression or dismissal. They claim the used ampoule would yield material evidence at their trials, and the State must therefore preserve and store them. Failure to do so, it is argued, violates due process under the rule stated by this court in State v. Wright, 87 wash.2d 783, 557 P.2d 1 (1976). We note there is no evidence that any of the defendants took advantage of the statutory right under RCW 46.61.506(5) to obtain a contemporaneous and independent test of blood alcohol content administered by a qualified person of the subject's own choosing, although that right is explicitly revealed in the statement read to every subject who is asked to take the breathalyzer test.

Defendant's many contentions regarding the materiality and usefulness of the used breathalyzer test ampoules, and the alleged constitutional requirement to preserve them, can be summarized in two statements. First, the used ampoules can be subjected to scientific testing which yields results purportedly capable of impeaching the validity of the original breathalyzer test results. Second, the used ampoules can be examined for several qualities by ordinary means, yielding conclusions purportedly capable of impeaching the credibility of the testing officer with regard to the propriety of the original testing procedure. These contentions will be considered separately.

I. Use of Used Ampoles to Impeach Original Test Results

The courts below each heard expert testimony regarding the feasibility of performing scientific tests of the contents of a used ampoule, with the goal of supporting or refuting the validity of the original test results. Retesting procedures are enthusiastically supported by some scientists. They believe the ampoule contents can be analyzed for volume and composition in such a way as to yield reliable

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results which can be compared significantly to the original test results. These procedures, defendants maintain, would allow them to introduce expert testimony at their trials to rebut the evidence of the original test. The materiality of this expert testimony is the basis of their claim the used ampoules must be preserved.

The threshold question, however, considered by the superior courts below, is whether such expert testimony would be admissible at trial. Although retesting is claimed to be reliable by some scientists, others are not persuaded. The courts heard testimony from recognized experts in the fields of analytical chemistry and toxicology, with long experience with the development and use of the breathalyzer machine. These experts testified that retesting procedures are not scientifically reliable due to unpredictable changes in the stored chemicals and inadequacy of volume-testing techniques, and...