State v. Williams
| Decision Date | 16 August 1984 |
| Docket Number | No. 83-504-A,83-504-A |
| Citation | 480 A.2d 1383 |
| Parties | STATE v. Daniel WILLIAMS. |
| Court | Rhode Island Supreme Court |
This case has been certified to this court from the District Court, second division, pursuant to G.L. 1956 (1969 Reenactment) § 9-24-27. The defendant, Daniel Williams, was arrested for drunk driving and submitted to a blood-alcohol examination conducted on a breathalyzer machine. Subsequently, the defendant moved to suppress the results of the breathalyzer test on the grounds that the police failed to preserve a sample of his breath in violation of his federal and state due-process and confrontation rights and in violation of his federal equal-protection rights. After listening to arguments of counsel and reviewing their briefs, the trial justice certified to this court three questions of importance and doubt. 1
The record is not disputed; both parties stipulated to the record submitted to us. 2 On March 16, 1983, shortly after 7 p.m., defendant was driving his vehicle on East Main Road in Portsmouth when he was stopped by Portsmouth police. He was then placed under arrest for driving under the influence of intoxicating liquor and was taken to the Portsmouth police station, where he was asked to submit to a breathalyzer test.
The defendant was advised of his rights, which he acknowledged by signing a breathalyzer rights form. The defendant exercised his right to counsel by telephoning his attorney, who came to the station and after consultation, defendant agreed to take the test. The defendant did not, however, exercise his right to contact a physician in order to obtain an independent examination. See G.L. 1956 (1982 Reenactment) § 31-27-2.
The breathalyzer machine used was a Smith & Wesson Model 900, one of several breathalyzer machines approved for use by the Rhode Island Department of Health. This machine determines the amount of blood alcohol through an electrochemical comparison process.
To obtain a suspect's blood-alcohol level from this machine, he or she must first blow deep-lung (alveolar) breath into a heated plastic tube. The tube then forces a fixed amount of this breath into a sample glass ampoule. The ampoule contains a chemical reagent composed of potassium dichromate in a sulfuric acid solution. This solution reacts to alcohol, causing the reagent to change color when dissolved with alcohol.
Prior to the test, the sample ampoule is balanced photometrically against a control ampoule. A beam of light is shown through both ampoules until a device called the null meter, which measures the amount of light each ampoule receives, is centered, indicating that each ampoule is receiving the same amount of light. One and a half minutes after the suspect's breath is blown into the sample ampoule, the chemical reaction between the breath sample and the reagent is complete. At this point, the light is again shown through both ampoules. If any of the potassium dichromate has been consumed by alcohol, the null meter will no longer be centered. The light is then moved until the meter is centered; the distance the light is moved is directly proportionate to the amount of potassium dichromate absorbed, which is directly proportionate to the amount of alcohol in the sample. The machine is capable of determining the amount of blood alcohol; the light passing through the test sample is reflected upon a photoelectric cell that activates an electric current, causing a dial on the face of the machine to move along a fixed scale that is graduated in terms of blood-alcohol content. 3 The machine then registers this score on a data-record card.
The Rhode Island Department of Health Regulations dictate that each suspect be given the test twice; the first test should be at least fifteen minutes after arrest and the second should be at least thirty minutes after the original test. During the thirty minutes between tests, the suspect is observed to ensure that he or she does not burp, regurgitate, or ingest any substance. Should any of these events occur, the thirty-minute waiting period must start to run from that time to avoid invalid test results. In addition, the accuracy of the machine is tested after each test by testing an air mixture of known alcohol content. See Department of Health Rules and Regulations January 1974, as amended March 1983 at 6-7.
The defendant first submitted to the breathalyzer test at 8:08 p.m.; his blood alcohol level was recorded at 0.14 percent. A second reading of 0.11 percent was recorded at 8:40 p.m. The defendant was subsequently charged with driving under the influence of liquor in violation of § 31-27-2.
At his pretrial hearing, defendant moved to suppress the results of the breathalyzer tests. He concedes that the officer who administered the examination is qualified and certified by the Department of Health to conduct breathalyzer tests. The defendant also concedes that the officer conducted the test in accordance with Department of Health regulations and followed the operational checklist provided by the manufacturer of the machine.
The basis for defendant's motion to dismiss, however, is that the town of Portsmouth failed to preserve a sample of his breath for his examination. Although the Portsmouth police department saves sample ampoules, it lacks the means for preserving a sample of the breath itself. The ampoules are removed from the machine and inserted into glass vials that are then capped and preserved at room temperature in a file cabinet. During this process the ampoules are open and exposed to air before being sealed in the vials. Accordingly, what is saved is not a sample of the breath itself but only the chemical solution resulting from the reaction between the breath and the reagent as well as any room air that might enter the ampoule when it is briefly exposed during the capping procedure.
The parties agree that it is technologically feasible to preserve a sample of a defendant's breath. Indeed, some machines presently in use in Rhode Island currently have that capability. The Smith & Wesson Model 900 itself cannot preserve the breath, but a separate system consisting of a crimping device and an indium tube is available for such a procedure. The suspect would be required to blow once into the Smith & Wesson machine and once into the crimping device. The latter breath sample would be sent directly into the indium tube, where it would be separated into three separate parts for preservation. The reusable crimping device costs approximately $300 and each indium tube costs about $13.
The defendant's motion to suppress basically asserts that the evidence against him is his own breath sample, which was not and indeed could not be preserved. He asserts that as a result of this nonpreservation of his breath sample, he was deprived of an opportunity to independently examine the evidence against him thus depriving him of fundamental constitutional rights. He argued that the town of Portsmouth deprived him of these rights by failing to employ available measures for preserving his breath sample.
At a hearing on the motion, the trial justice apparently only heard the arguments of counsel; no witnesses were presented by either side. Rather than reach a decision on this issue, the trial justice certified three questions to this court:
In response, we answer all questions in the negative. We shall now detail our reasoning and conclusions.
In addition to an agreed-upon statement of facts, the record before us consists of the town's five exhibits: a copy of the breathalyzer rights form, the Smith & Wesson Model 900 instruction manual, the operational checklist, the Department of Health Regulations R31-27-ALCH (Rev'd March 1983), and a copy of the data-record card. In addition, the defense produced two exhibits for the record: defendant's motion to suppress and a copy of a District Court decision, State v. Comeau. This decision was included in the record as part of an agreement between the parties concerning the inherent-error factors existing in the use of a breathalyzer machine; the trial justice in Comeau made findings of fact relative to some of these factors which the parties to the present controversy wish to adopt. We cannot accept, as part of the record before us, findings of fact made by a trial justice in an entirely different case. Accordingly, we do not consider the Comeau decision to be appropriate to the instant case.
The defendant asserts that the tested sample of his breath is both material and potentially exculpatory owing to the inherent-error factors involved in the testing. Accordingly, he asserts that the town's failure to preserve a sample of his breath violated his due-process rights under the Federal and State Constitutions. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Faraone, R.I., 425 A.2d 523 (1981). The town argues that the facts of this case do not demonstrate that it failed to preserve...
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...none has seen fit to require, as a matter of state constitutional law, the preservation of breath samples (see, for example, State v. Williams, 480 A.2d 1383 [Supreme Court of Rhode Island 1984]; Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 [Supreme Court of Arkansas 1984]; State v. Vernon......
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