State v. Helmer

• Decision Date: 17 May 1979
• Docket Number: No. 12578,12578
• Citation: 278 N.W.2d 808
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Jeffrey Rand HELMER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 808

278 N.W.2d 808

STATE of South Dakota, Plaintiff and Respondent, v. Jeffrey Rand HELMER, Defendant and Appellant.

No. 12578.

Supreme Court of South Dakota.

Argued April 19, 1979.

Decided May 17, 1979.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

William H. Coacher, Sturgis, for defendant and appellant.

MORGAN, Justice.

Appellant was arrested on July 30, 1977, and took a breathalyzer test with results showing 0.19% Alcohol in his blood. He was subsequently arraigned on a charge of driving while there was 0.10% Or more by weight of alcohol in his blood, and convicted after jury trial in the Circuit Court for the Eighth Judicial Circuit, Butte County, South Dakota.

On appeal, appellant asserts pretrial error in the failure of the trial court to suppress the breathalyzer evidence and dismiss the information for two reasons: (1) That the test ampoule from the breathalyzer was not preserved for his use as exculpatory evidence; and (2) that the foundation was insufficient to admit any breathalyzer test results because the reliability of said machine has not been sufficiently established to have general acceptance in the field of blood alcohol analysis. He also asserts trial error in the admission of his test results without foundation. We affirm the judgment of the trial court.

At the pretrial suppression hearing, the evidence disclosed that the breathalyzer test was taken at the Butte County Sheriff's Office approximately forty minutes after his arrest. The test was given under the instructions of a certified breathalyzer operator who followed a procedural checklist to insure the correct administration of the test. Testimony was further elicited that it is routine procedure to dispose of the ampoules immediately following the test. There was testimony as to the practicality, possibility and feasibility of retaining the ampoules for further testing, as well as the nature of any possible further testing. Finally there was extensive testimony concerning the operator and the operation of the breathalyzer machine and the reliability of its results. The trial court issued its findings of fact and conclusions of law and denied appellant's motions.

In the course of trial, the State offered the blood test results in evidence, which offer was received over appellant's objection which went mainly to the foundation. The State then put the state chemist on as a witness and began to introduce testimony extrapolating the test results to arrive at the alcohol content of appellant's blood at the time of arrest. Appellant objected to this line of questioning on the ground that such extrapolation was outside the expertise of a chemist and fell rather within the expertise of a toxicologist. The objection was sustained. The trial resulted in a verdict of guilty and appellant subsequently pleaded guilty to the second part of the two-part information alleging previous convictions of driving while intoxicated. He was later sentenced to one year in the state penitentiary.

The first consideration is whether the trial court erred in determining that the State's failure to preserve and produce the ampoule was not a violation of appellant's constitutional due process rights.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court ruled that it is a violation of an accused's due process rights for the prosecution to suppress favorable evidence which is material either to the accused's guilt or punishment. It must be first shown, however, that the evidence is both material and exculpatory. This rule has been accepted by this Court in State v. Parker, S.D., 263 N.W.2d 679 (1978) and more recently in a more definitive opinion in State v. Hanson, S.D., 278 N.W.2d 198 (1979).

We reaffirm our view in Hansen, supra, and look first to the materiality of the evidence sought. In Hansen, supra, the evidence sought was a sample of the marijuana that defendant was charged with distributing. Obviously, if the evidence was not marijuana, that fact would be highly material and exculpatory. But what of the ampoule in the instant case? Several courts have determined that the ampoules, if preserved, would not be material as to the accused's guilt or innocence. It is usually stated that any evidence gained upon remeasuring or retesting the ampoule would go only to the credibility of the machine's operator and the test results. In Edwards v. State, Okl.Cr., 544 P.2d 60 (1976), the Oklahoma Criminal Court of Appeals stated:

The ampoules, we note, may indeed provide an accused with an opportunity to impeach the test results as recorded by the breathalyzer, that is, to challenge, on strictly technical grounds, the represented degree of accuracy of any specific breathalyzer device, but such an effort if successful, could only reflect on the credibility or weight to be given the test result and could not, by itself, have conclusively established the innocence of the accused. . . . A re-examination of the ampoules, if technically feasible, would fall short of producing evidence which could be characterized as material as to the issue of guilt or innocence. 544 P.2d at 64.

In State v. Canaday, 90 Wash.2d 808, 585 P.2d 1185 (1978), the Washington Supreme Court stated:

The United States Supreme Court set out a test for materiality of nondisclosed evidence in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The court held constitutional error is committed by nondisclosure only if the evidence creates a reasonable doubt which did not otherwise exist. United States v. Agurs, supra at 112, 96 S.Ct. 2392. This definition of constitutionally material evidence is a refinement of the court's earlier holding that suppression of material evidence which is favorable to the accused violates due process. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not believe that the proposed use of the ampoules in this case to impeach the credibility of the officer who administered the original test is a means of raising a reasonable doubt which did not otherwise exist within the meaning of the rule set out above. . . . We conclude that the used breathalyzer test ampoules are not material evidence in a constitutional sense and nondisclosure of the ampoules caused by routine destruction and disposal is not constitutional error. . . .

(D)estruction of used breathalyzer test ampoules, . . . does not interfere with the defendant's ability to determine the facts or raise a defense of nonintoxication. Testimony to be gained from the ampoules is only tangential to the question of innocence or guilt. 585 P.2d at 1189-1190.

In most of the cases in which preservation of the ampoules is not required, the courts state either that retesting the solution in the ampoules for either volume or concentration is not proven to be scientifically feasible or reliable, thereby making the admissibility of any resulting evidence questionable, or else that there was insufficient evidence in the record to support any statements as to reliability of retesting. ¹ The three courts that have required preservation of the ampoules, on the other hand, all emphasized that they found retesting to be feasible, reliable and useful. People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974); Lauderdale v. State, Alaska, 548 P.2d 376 (1976); State v. Michener, 25 Or.App. 523, 550 P.2d 449 (1976). In Hitch, however, the California Supreme Court ruled that a California Statute required the preservation of the ampoule, and the ampoule used was a type which could be resealed, unlike those in use nearly everywhere else. The other two courts did not base their decisions on these two grounds, but rather simply agreed with the California Court's conclusions as to retesting.

In the instant case, the trial court found that the only possible use of the used ampoules would be to recheck the volume of their contents. The court apparently rejected any other type of retesting.

Looking next to the exculpatory nature of the material sought, obviously appellant was not able to prove that the ampoule was exculpatory evidence and therefore this requirement is not fulfilled. In Hitch, Lauderdale, and Michener, however, the court seemed to say that there was a reasonable probability that it would be exculpatory and that denying the accused the ability to find out if it was exculpatory or not was a denial of due process. The Federal District Court in Edwards v. State of Oklahoma, 429 F.Supp. 668 (W.D.Okl.1976), however, stated that:

The Hitch court found that it sufficed that there was a 'reasonable possibility' that they might constitute favorable evidence. This extension of the Brady Doctrine is not justified as a matter of constitutional law. Brady focused upon the harm to the defendant resulting from non-disclosure. Hitch diverts this concern from the reality of prejudice to speculation about contingent benefits to the defendant. 429 F.Supp. at 671.

In the instant case, we hold that there is no "reasonable possibility" that the evidence would be exculpatory. The trial court found as a fact that in the course of testing, the operator had gauged the ampoule and found it to be acceptable for use. Also, the state chemist testified at the suppression hearing that he had tested twelve random ampoules from the lot which contained the ampoule used in this case and all twelve ampoules contained the proper amount of liquid in proper concentrations. ²

Further, even if we assume that the ampoule would provide evidence favorable to appellant, does that necessarily suffice to make the evidence exculpatory? Black's...