People v. Miller

California Court of Appeal Oct 31, 1975 No. Docket Nos. 14317, 14318, 14565Published

Before: Draper

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Holding. The court held that the rule in People v. Hitch, which requires the preservation of evidence, does not extend to require the transformation of breath samples into a preservable form when using the Omicron Intoxilyzer, as the device does not produce evidence that the government can take possession of.

Issues

Whether the rule in People v. Hitch requires the preservation of breath samples from an Omicron Intoxilyzer that cannot be retested.
Whether the prosecution is required to use testing devices that produce preservable evidence.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“Hitch merely holds that evidence which the prosecution once possesses must be held.”

“The intoxilyzer, however, produces no such material.”

“We do not understand Hitch to enter into the highly intensified competition among manufacturers of breath testing devices, which already has reached the stage of litigation”

Opinion

DRAPER, P. J.

These three cases all arise from misdemeanor prosecutions for driving while under the influence of intoxicating liquor (Veh. Code, § 23102). All raise the question whether the recent decision of the Supreme Court

(People

Hitch,

12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361]) should be extended to render inadmissible the results of all chemical tests of breath conducted by use of the “Omicron Intoxilyzer.” The appellate department of a superior court certified each case to us. In light of the purchase and use of the intoxilyzer in many counties, and the diversified views among lower courts, we ordered transfer, here. (Cal. Rules of Court, rule 62.)

Munroe was convicted of driving under the influence of intoxicating liquor after jury trial in the Justice Court of Del Norte County Judicial District. The prosecution evidence included results of an intoxilyzer test of his breath which showed an alcohol blood content of .16 percent. He appealed. The appellate department held that

Hitch

required not only retention of preservable evidence, but also the reduction of test material to preservable form. It ruled that due process was denied by admission in evidence of the results of the intoxilyzer test, because that instrument does not provide any sample which can be retained for retesting.

The same session of the Legislature which established presumptions based upon the alcohol content of blood as shown by tests of blood, breath, or urine (Veh. Code, § 23126) directed the State Board of Public Health (now State Department of Health) to establish regulations for testing of breath samples to determine the concentration of alcohol in the blood of a subject. (Health & Saf. Code, § 436.52.) Detailed regulations have been issued and are published. (Cal. Admin. Code, tit. 17, art. 6, §§ 1220-1225.) At least two devices, the intoxilyzer and the breathalyzer, have been approved by the Department of Health.

Hitch

considered only the breathalyzer. That device produces test material which can be retested if preserved. The intoxilyzer, however, produces no such material. The subject’s breath is captured in a metal chamber, infrared energy of fixed intensity and wave length is passed through the chamber from one side to a photo-electric cell on the other side. Alcohol absorbs

People v. Miller

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DRAPER, P. J.

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