United States v. Sewar, 72-1962.
Citation | 468 F.2d 236 |
Decision Date | 22 January 1973 |
Docket Number | No. 72-1962.,72-1962. |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Edward P. SEWAR, Defendant-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Bruce Babcock, Jr., Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellant.
E. Richard Walker, Federal Public Defender (argued), Sacramento, Cal., for defendant-appellee.
Before DUNIWAY and CARTER, Circuit Judges, and McNICHOLS, District Judge.*
Certiorari Denied January 22, 1973. See 93 S.Ct. 972.
The United States appeals from an order granting Sewar's motion to suppress certain evidence. The appeal is permitted by 18 U.S.C. § 3731. We reverse.
Sewar has been indicted in two counts charging manslaughter and felony drunk driving committed on a government reservation. (See 18 U.S.C. §§ 13, 1112 and Cal. Vehicle Code § 23101). The case arises from a two car collision occurring on Beale Air Force Base. Sewar drove one of the cars; one occupant of the other car was killed and another was injured. Sewar, too, was injured and was taken to the base hospital. There, blood was taken from his body. Several days later, an officer ordered that this blood be subjected to a blood alcohol test. A technician at the hospital performed two tests which showed, respectively, readings of .286% and .265%. Under California law one is presumed to have been intoxicated if the test shows .10% or more. Some time later, the technician, finding that his refrigerator was full, and not realizing that the sample should be preserved, threw it out, along with others. On the basis of these facts, the trial judge suppressed all evidence relating to the tests. Thus, the government will not be able to present the testimony of the technician or the hospital records to show the results of the tests, at the trial.
At the hearing of the motion to suppress, the court assumed that there was no bad faith on the part of the technician when he threw out the sample. The record supports this. The judge's reasoning was as follows:
In so holding, the court went too far. Not every blunder by investigators should result in the exclusion of relevant competent, important evidence. While we would be naif to believe that no investigator would ever behave in the manner conjured up by the trial judge, we cannot administer justice upon the assumption that all or even most investigators will behave in that manner.
This case is governed by United States v. Augenblick, 1969, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537. It involved the unexplained loss of a tape on which was recorded a conversation between the accused and...
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