State v. Wittenbarger
| Decision Date | 08 September 1994 |
| Docket Number | Nos. 60975-6,60976-4 and 60977-2,s. 60975-6 |
| Citation | 880 P.2d 517,124 Wn.2d 467 |
| Parties | , 63 USLW 2215 The STATE of Washington, Cascade District Court, and Paul F. Moon, Respondents, v. Jerry A. WITTENBARGER, Bohdon W. Bodnarchuk, Michael J. Boersema, Rietta Costa, Daniel A. Dollison, James R. Freeman, John M. Perez, Roberta Thompson, Thomas W. Bibby, Mark S. Watt, Kris R. Ketchum, and Jackie L. Rodden, Petitioners. The STATE of Washington, on the Relation of Seth Dawson, as Prosecuting Attorney of Snohomish County, Respondent, v. SOUTH DISTRICT COURT, Judge Robert Schillberg, and Richard A. Church, et al., Appellants. The STATE of Washington, Appellant, v. Reginald MATTHEWS, Dale Giddings, Deborah Magee, John McCauley, Michael Prather, John Sneehan, Jimmiel Spears, Tracy Degarmo, Harold Gompf, and William Jamieson, Respondents. |
| Court | Washington Supreme Court |
Steven C. Ashlock, Lovie L. Bernardi of Snohomish County Public Defender Ass'n, Everett, WA, for petitioners Wittenbarger, et al.
Neil M. Fox, Christine A. Jackson of Seattle-King County Public Defender Ass'n, Seattle, for respondents Matthews, et al.
Seth R. Dawson, Prosecuting Atty. for Snohomish County, Constance M. Crawley, Deputy, Everett, Norm Maleng, Prosecuting Atty. for King County, Donald J. Raz, Sr. Deputy, Lana Morgan, Stephen G. Teply, Deputies, Seattle, WA, for the State.
Breath alcohol analysis in Washington is currently tested using BAC Verifier DataMaster (DataMaster) machines, which have completely replaced the previously used Breathalyzers. The admissibility of DataMaster breath test results has been widely challenged in recent DWI prosecutions under RCW 46.61.502, Washington's driving while under the influence of intoxicants (DWI) statute.
The three cases in this opinion, which represent many consolidated DWI cases, were linked due to the similarity of the issues raised. In each of the cases, the defendants' DataMaster breath test results were suppressed and the prosecutions were dismissed. The District Courts cited both constitutional and statutory grounds for the suppressions. We begin by addressing the issue of constitutional due process, the sole issue raised in State v. Matthews.
Because the basic facts underlying the cases are essentially the same, we detail the facts more fully in State v. Matthews and incorporate additional facts as needed in State ex rel. Dawson v. South Dist. Ct. and State v. Wittenbarger.
Each of the defendants in this case was arrested for a suspected DWI violation. As part of the investigation, the defendants each submitted to a DataMaster chemical breath analysis and registered a breath alcohol content above the legal limit of .10 percent. When DWI charges were brought in the Shoreline Division of King County District Court, counsel for the defendants submitted pretrial motions for suppression of the DataMaster results on the grounds, among others, that their due process rights were violated by the State's failure to preserve maintenance and repair records on the DataMaster machines. Because the cases involved identical issues, they were consolidated for a suppression hearing.
Rather than submit new expert testimony on the issues in this case, the parties stipulated to a record consisting primarily of the transcripts from two similar cases in Bellevue and Renton District Courts. The extensive detailed testimony addresses the technology of the DataMaster machines, the relevance and value of various DataMaster records, and the circumstances surrounding the development of the new Washington Administrative Code procedures for DataMaster operation and maintenance.
Under RCW 46.61.506(3), the State Toxicologist has the delegated authority to approve breath testing procedures and protocols and has recently drafted revised protocols and procedures for breath testing to reflect the switch to the updated DataMaster technology. The new procedures became effective in 1991 and are found in WAC 448-13. Under WAC 448-13-050, the accuracy of the DataMaster test results is ensured by adherence to specific testing procedures. For example, before a breath test is performed, the DataMaster operator must observe the individual for fifteen minutes and check his or her mouth for substances that might affect the test. When testing begins, a blank test is conducted to ensure that the internal air of the DataMaster chamber contains no alcohol from a previous test that could interfere with the current results. Next, the individual blows into the machine, and the first breath sample is tested, followed by another blank test. At this point, a specially prepared simulator solution with a known alcohol content is tested to verify that the DataMaster is correctly performing the chemical analysis. After a third blank test, the individual gives another breath sample followed by a final blank test. The results of these tests are printed out on a breath ticket.
In order to be considered valid, the entire test must be performed following all protocol, the blank tests must register a 0.00 alcohol content, the results of the two breath samples must be within plus or minus 10 percent of the average of the two measurements, and the reading from the simulator test must be within 10 percent of the known alcohol content. WAC 448-13-050 and -060.
In addition to the breath test protocol, the State Toxicologist has developed a quality assurance protocol (QAP) designed to ensure the DataMasters are maintained in proper working order on a regular basis. See WAC 448-13-110. Under the QAP, a DataMaster is officially approved for use only after a thorough inspection of its components. Such an inspection is also required at least every 12 months and after most repairs.
Under the new QAP, the actual procedures used to evaluate and approve the DataMasters closely resemble those previously used to certify the Breathalyzer machines. The State's record keeping policies, however, have been revised. For example, specific data from the inspections is no longer recorded. Instead of recording information such as initial voltage values, adjusted voltage values, and calibration factors, the technicians merely indicate that the required tests were performed with satisfactory results by checking a box on the inspection forms.
The defendants contend that these detailed inspection records, along with additional repair and maintenance records no longer generated by the State, are necessary to their defense. In support of this contention, the defense presented the testimony of two experts, Dr. Richard Jensen, forensic scientist, and Carol Murren, former employee of the State Toxicologist. The experts essentially testified that all records of machine malfunctions and repairs would be useful and should be retained in order to assist the defense in challenging the reliability of the DataMasters.
The District Court suppressed the results of the defendants' BAC Verifier DataMaster breath test results on the ground that the State, by no longer generating certain maintenance repair records, deprived the defendants of due process of law under both the Fourteenth Amendment and article 1, section 3 of the Washington State Constitution. The State filed a RALJ appeal in King County Superior Court, but before the appeal was heard, the Court of Appeals granted a motion for direct review. The appeal was then certified to this court and linked for oral argument with two similar cases. We find that neither federal nor state due process requires state law enforcement agencies to keep additional DataMaster records, and, therefore, we reverse the District Court's suppression order.
In recent years we have left open the question of whether the due process clause of our state constitution places more stringent requirements on the State in the area of preservation of evidence for the defense. See State v. Furman, 122 Wash.2d 440, 858 P.2d 1092 (1993); State v. Ortiz, 119 Wash.2d 294, 831 P.2d 1060 (1992); State v. Straka, 116 Wash.2d 859, 810 P.2d 888 (1991). Today, after consideration of the 6 factors set out in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), we hold that the state due process clause affords the same protection regarding a criminal defendant's right to discover potentially exculpatory evidence as does its federal counterpart.
The Fourteenth Amendment requires that criminal prosecutions conform with prevailing notions of fundamental fairness, and that criminal defendants be given a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); California v. Trombetta, supra.
Two Supreme Court cases, California v. Trombetta, supra, and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), developed a test to determine whether the government's failure to preserve evidence significant to the defense violates a defendant's due process rights. It is clear that if the State has failed to preserve "material exculpatory evidence" criminal charges must be dismissed. Recognizing that the right to due process is limited, however, the Court has been unwilling to "impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. A showing that the evidence might have exonerated the defendant is not enough. In order to be considered "material exculpatory evidence", the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to...
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