State v. Larson

• Decision Date: 22 December 1981
• Docket Number: Cr. N
• Citation: 313 N.W.2d 750
• Parties: STATE of North Dakota, Plaintiff, v. Gerald LARSON, Defendant. o. 784.
• Court: North Dakota Supreme Court

Page 750

313 N.W.2d 750

STATE of North Dakota, Plaintiff, v. Gerald LARSON, Defendant.

Cr. No. 784.

Supreme Court of North Dakota.

Dec. 22, 1981.

Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff.

Haugland & Heustis, Devils Lake, for defendant.

ERICKSTAD, Chief Justice.

Upon joint application by the State and the defendant, Gerald Larson, the Ramsey County Court with Increased Jurisdiction, pursuant to Chapter 32-24, N.D.C.C., certified to this Court the following two questions of law for determination:

"1. Is the State of North Dakota required to make a sample of the defendant's breath taken at the time of the breathalyzer examination available to the defendant for independent testing?

"2. Is the State of North Dakota required to make the chemical test ampoule from the breathalyzer available to the defendant for independent testing?"

The trial court answered the foregoing questions in the negative, concluding that the State is not required to provide a defendant with a sample of his breath taken at the time of a Breathalyzer examination nor to provide him with the test ampoule used in the Breathalyzer. This Court, having concluded that the determination of this case will depend principally upon the construction of law applicable to the questions certified, will proceed to answer those questions.

The parties entered a stipulation of facts including the following: A law enforcement officer, having probable cause to do so, arrested Larson for DWI. The arresting officer elected to take a breath sample to determine the amount of alcohol in Larson's blood, for which purpose the officer used a Breathalyzer machine. The results of the Breathalyzer test showed that Larson had fifteen-hundredths of one-percent by weight of alcohol in his blood which amount, pursuant to Section 39-20-07, N.D.C.C., raises a presumption that the person is under the influence of intoxicating liquor. ¹

Subsequent to taking the test Larson made a demand upon the State to provide him, for independent testing, a separate sample of his breath obtained by the arresting officer while administering the Breathalyzer test and the test ampoule used in the Breathalyzer. The State was unable to honor either request because no sample of Larson's breath was saved at the time the test was administered and because the test ampoule was discarded immediately following the test. Larson asserts that the State's failure to provide him a breath sample or the test ampoule lessens his ability to impeach the Breathalyzer results and constitutes a violation of his constitutional right to due process. As a remedy, he requests this Court to suppress the Breathalyzer test results.

QUESTION 1

"Is the State of North Dakota required to make a sample of the defendant's breath taken at the time of the breathalyzer examination available to the defendant for independent testing?"

At the time the arresting officer administered the Breathalyzer examination no sample of Larson's breath was taken or saved for independent testing by Larson. The parties have stipulated that the Breathalyzer machine used for the test is not adapted to obtain a separate breath sample for independent testing but that it is physically possible for a sample of one's breath to be preserved in some suitable vial or container. Larson asserts that the State had a duty to provide him with a breath sample taken at the time the Breathalyzer examination was administered and that the State's failure to do so constitutes a violation of his due process right to a fair trial. We conclude that the State is not required to provide a defendant with an independent sample of his breath taken at the time a Breathalyzer examination is administered.

Section 39-20-02, N.D.C.C., provides:

"Persons qualified to administer test. Only a physician, or a qualified technician, chemist, or registered nurse acting at the request of a law enforcement officer may withdraw blood for purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of a breath, saliva, or urine specimen. The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of the test or tests taken at the direction of law enforcement officer. Upon the request of the person who is tested, full information concerning the test or tests taken at the direction of the law enforcement officer shall be made available to him." (Emphasis added.)

Pursuant to the foregoing statute a person upon whom a law enforcement officer has administered a chemical test can have any qualified person of his own choosing administer a test or tests for his own use. If that person desires samples of his breath for independent testing he has the right to acquire those samples himself with the assistance of any qualified person he chooses.

State v. Bryan, 133 N.J.Super. 369, 336 A.2d 511 (1974), involved a New Jersey statute with provisions similar to Section 39-20-02, N.D.C.C., permitting a person who has submitted to a Breathalyzer examination to "have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection." The New Jersey statute also provides that the police officer must inform the person being tested of his right to have such samples taken. The Superior Court of New Jersey in Bryan, supra, concluding that the statute afforded the defendant due process by permitting her to obtain her own breath samples, stated:

"The foregoing statutory mandate provides a means consistent with 'due process' by which a defendant may verify the test he has consented to by the police authorities. This court finds the statute meets the minimum standard of 'due process' and therefore is entitled to a presumption of constitutionality. To comport with due process the procedures followed need only be fair and reasonable. The test as currently constituted meets such requirements." (Citations omitted.) 336 A.2d at 514.

We conclude, as did the New Jersey Superior Court with regard to the New Jersey statute, that Section 39-20-02, N.D.C.C., which permits a person to obtain his own breath sample, affords him a fair and reasonable opportunity to scrutinize and verify or impeach the results of the Breathalyzer test administered by the law enforcement officer and, thereby, comports with the due process requirements of the Constitution.

We hold that the State is not required to make a sample of the defendant's breath taken at the time of the Breathalyzer examination available to the defendant for independent testing.

QUESTION 2

"Is the State of North Dakota required to make the chemical test ampoule from the Breathalyzer available to the defendant for independent testing?"

Larson asserts that the State's failure to preserve and provide him the test ampoule used in the Breathalyzer examination violated his constitutional rights of due process as interpreted by the United States Supreme Court in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The United States Supreme Court in Brady, supra, held 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." The petitioner in Brady, supra, and a companion were found guilty of murder in the first degree. Prior to trial the petitioner had requested the prosecution to allow him to examine his companion's extra-judicial statements, and several of those statements were shown to him; but one, in which the companion had admitted the actual homicide, was withheld by the prosecution. The court held that the suppression of this confession by the prosecution violated the petitioner's due process rights.

The instant case is distinguishable from Brady, supra, in a number of respects, most importantly that the companion's statement in Brady, although available, was withheld from the defendant by the State whereas in the instant case the test ampoule used in the Breathalyzer examination was destroyed, as a matter of routine practice, immediately following the administration of the test and was, therefore, unavailable to either the prosecution or the defense. Nevertheless, we agree with the rationale of the U. S. Court of Appeals for the District of Columbia as expressed in United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971), whereupon the court concluded that the Brady requirement applies to a case in which evidence requested by the defendant has been lost or discarded by the State "Were Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simbly (simply) to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government." 439 F.2d at 648.

Enumerating on the Brady, supra, holding, the Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), stated:

"The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by...