Van Halen v. Municipal Court

• Decision Date: 31 December 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Jan VAN HALEN, Petitioner and Appellant, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, Respondent, The PEOPLE, Real-Party in Interest. Civ. 34070.

Page 140

83 Cal.Rptr. 140

3 Cal.App.3d 233

Jan VAN HALEN, Petitioner and Appellant, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, Respondent The PEOPLE, Real-Party in Interest.

Civ. 34070.

Court of Appeal, Second District, Division 4, California.

Dec. 31, 1969.

Rehearing Denied Jan. 12, 1970.

Hearing Denied Feb. 25, 1970.

Evelle J. Younger, Dist. Atty., Los Angeles, Harry Wood, Head, Appellate, division, and Robert Lederman, Deputy Dist. Atty., for the real-party in interest.

No appearance for respondent court.

KINGSLEY, Associate Justice.

Petitioner was arrested on a charge of misdemeanor drunk driving, in violation of subdivision (a) of section 23102 of the Vehicle Code. He was asked to, and did, submit to a so-called 'breathalyzer' test, the result of which purportedly showed that his blood had an alcoholic content of .21 per cent. It is admitted that the People intend to prosecute him on the charge for which he was arrested, that they will offer in evidence against him the result of that test, and that that evidence, if not successfully contradicted or impeached, will support a conviction. The present action is the result of his attempts to secure evidence which might have the desired rebutting or impeaching effect.

The operation of the breathalyzer test is set forth in the findings of the superior court as follows:

'2. That the said breathalyzer is an apparatus electrically powered whose function essentially is this: The suspect blows a given quantity of alveolar air into a tube at the end of which, and inside said breathalyzer apparatus itself, said air sample is trapped. That thereafter the said trapped sample is permitted to bubble through a test ampoule, the same being inserted into the apparatus before each test is administered, containing three cubic centimeters of .025 percent potassium dichromate in fifty percent by volume sulphuric acid solution; and that the last-mentioned solution acts as a reagent to alcohol, if any, suspended upon the suspect's breath, the light-transmissibility of which said solution changes correlatively as the percentage of alcohol increases, relative to a fixed quantum of alveolar air; and that thereafter a light beam is caused to pass through the said test ampoule, the relative light-transmissibility or lack thereof, of said solution being registered upon a meter which calculates the extent of alcohol in the suspect's circulatory system.'

Petitioner secured a subpoena duces tecum, calling for the production of the test ampoule and its contents. The return was that, in accordance with departmental policy, they had been destroyed shortly after the test was administered. Petitioner then moved in the municipal court for a dismissal of the prosecution; that motion, twice made, was denied. He then sought in the superior court a writ of prohibition to prevent further prosecution of the criminal charge. After a hearing, the petition was denied. He has appealed. We reverse the judgment and order a dismissal of the superior court proceeding.

I

The uncontradicted testimony (drawn from witnesses admittedly expert in the field and either presently or previously employed in their professional capacities by the City or by the County of Los Angeles) was: (1) that the glass used in test ampoules is not optically perfect, and that defects or imperfections therein would affect the passage of light in such a way as to give a reading inaccurately adverse to the test subject; (2) that it is possible that the quantity of the solution in the ampoule might be less than the assumed 3 cubic centimeters, and that any reduction in quantity would also produce an adversely inaccurate reading; and (3) that it is possible that the solution might be qualitatively inaccurate, again with an adversely inaccurate result.

Testimony, on which the People rely, was to the effect: (1) that it was not practical to reseal the ampoule with its original contents, after the ampoule had been inserted in the device for use in the original test; (2) that it was possible to store the original ampoule and make it available for analysis by defense experts; (3) that, although some risk of loss by spillage and of harm to a technician existed, it was possible to transfer the original contents of the test ampoule to another, sealable container; (4) that, even if the ampoule and its contents were so retained, a post-test analysis would not produce results sufficiently definite to be of value to a defendant.

The superior court found for the People on the issue of the impracticability of resealing the test ampoule with its original contents; it made no finding as to the practicability of transferring the contents to another container nor as to preservation of the ampoule per se. Any findings on those issues, on the record before us, would necessarily have been favorable to petitioner. ¹

The trial court made no findings on the other issues in the case--namely, whether it was technically possible to determine, by post-test examination and analysis, whether the test result was or was not accurate. The record before us does not show that findings on those issues would necessarily have been in favor of either party.

Since defendant's contention that he was denied due process of law by the intentional (although nonmalicious) destruction of the ampoule and its contents depends on a showing not only that those things could have been retained and made available to him, but on the further showing that, if so retained and made available, they would have been of value in his defense, it follows that, on this record, absent findings of fact by a trial court, we could not determine whether a constitutional right had, or had not, been violated.

II

Petitioner, relying on language in In re Cameron (1968) 68 Cal.2d 487, 504, 67 Cal.Rptr. 529, 439 P.2d 633; People v. Kiihoa (1960) 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673, and In re Newbern (1959) 175 Cal.App.2d 862, 1 Cal.Rptr. 80, 78 A.L.R.2d 901, contends that, if the destroyed evidence should have been kept and made available for post-test analysis, he is entitled to a writ prohibiting the further prosecution of the charge against him. The People, in opposition, rely on People v. Marich (1962) 201 Cal.App.2d 462, 19 Cal.Rptr. 909; People v. Tipton (1954) 124 Cal.App.2d 213, 216--217, 268 P.2d 196; People v. Candalaria (1953) 121 Cal.App.2d 686, 689, 264 P.2d 71; People v. Shafer (1950) 101 Cal.App.2d 54, 59--60, 224 P.2d 778, and People v. Anderson (1948) 87 Cal.App.2d 857, 861, 197 P.2d 839.

The cases cited by the People are not helpful in the present case. In Marich, the defendant had made no effort at, or before, the trial, to secure the alleged sample of heroin for examination; in the case at bench, defendant, as we have indicated, made every possible effort in the municipal court--the point is not raised for the first time on appeal. Anderson, Candalaria and Tipton, stand only for the proposition that physical evidence, if adequately described by witnesses, need not necessarily be introduced as part of the People's case in chief. The case at bench involves no such issue; it is...