Edwards v. StateEdwards v. State
- Reporters:
- , ,
- Before:
- Brett
OPINION
BRETT, Presiding Judge:
Appellant, Rhenna Navajo Edwards, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRM-74-3211, for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, a violation of
Defendant’s sole assignment of error constitutes a question of law, the resolution of which neither requires nor necessarily turns upon a recitation of the facts therein. Defendant contends that the District Court committed error when, during a hearing to consider a Motion to Suppress Evidence, it refused to grant defendant’s Motion and ruled to admit the evidence in question, specifically, the results of a breathalyzer test to which defendant had voluntarily subjected himself. Defendant maintains that the intentional though non-malicious destruction of certain components employed in the instrument’s normal operation deprived him of an opportunity to examine the evidence against him and amounted to the destruction of material evidence which could have potentially established his guilt or innocence; that the District Court’s admission of the results of the breathalyzer test deprived defendant of a fair trial and thereby denied him his right to due process. In so claiming, defendant predicates his argument on the opinion issued by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1960), wherein the accused had requested and was denied information deliberately withheld by the State, a violation, it was found, of the accused’s right to due process. Though the suppression of evidence is not at issue here, an important factor which distinguishes this case from Brady, its destruction does pose a similar problem in that it is no longer available and the possibility for re-examination simply does not exist. Defendant argues that if the evidence destroyed had been preserved, it would have afforded him an op *62 portunity not only to invalidate the test result, but also to obtain evidence material to a determination of his innocence as to the offense charged. He maintains that,-in its absence, the District Court, if the ruling in Brady is to be observed and his right to a fair trial to be protected, had no other choice but to exclude the test result from its deliberations. With this we cannot agree.
The breathalyzer, an apparatus especially designed to analyze a sample of breath as a means by which the alcoholic content of the blood may be determined, is considered a reliable device for measuring levels of intoxication. Alexander v. State, Okl.Cr., 305 P.2d 572 (1956). Defendant does not purport to question the court’s acceptance of either the technological basis upon which the instrument operates or the results derived from its use generally, rather, he does instead claim as his right the opportunity to challenge the technical accuracy of the particular device employed in the examination to which he himself was subjected. The component to which he specifically refers may be described as a sealed glass vial or ampoule, containing a prepared, mixed chemical solution which is considered an essential factor in this system of measurement. It is the content of the ampoule to which the sample breath is exposed, and once exposed, acts to directly influence the reading of a gauge on the device which is calibrated in terms of percentage of alcohol in the blood. Defendant, in support of his argument, almost totally relies upon the decision rendered in People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), by the California Supreme Court wherein the ampoules, in a situation which compares similarly to the one here present, were deemed to have a sufficiently important evi-dentiary nature that their actual destruction, by the result of established procedure, “could only operate to deprive [the] defendant of a fair trial.”
We understand the opinion preferred in
Hitch
to mean that both where the evidence is material to the issue of guilt or innocence with respect to the charge against the accused, and where it is clearly a matter involving the failure of the prosecuting authorities to take adequate steps to preserve the same, the only fair and proper remedy available to the court would include the exclusion of said evidence from its consideration. However, we are not convinced as was the California Court in
Hitch
that the evidence here in question is actually material with respect to the issue of the guilt or innocence of the defendant. True, given the very definite wording of
Though the court below was not in a position to examine the evidence itself, it was not thus prevented from first, deciding whether the particular evidence in question would have been favorable to the accused, and second, determining whether or not such evidence was in fact material to the issue of the guilt or innocence of the defendant with respect to the crime charged. An examination of the record shows only that the defendant sought to raise the possibility of there existing a defect in the ampoules used; that no effort was made to offer expert testimony as to scientific manner or methods which could be employed in examining the ampoules, or, for that matter, as to the likelihood that the physical nature of the evidence would be found to be of any actual value to defendant. At best, given the inevitable decomposition of a chemical solution within the vial and its alteration through use, defendant’s arguments constituted mere speculation on his part, with nothing more advanced to realistically suggest the probability that information of any definite value would be obtained from any recognized or reliable process of re-examination, or that the results of this particular endeavor would have been favorable to the defendant.
The destruction of the ampoules is mandated under the rules promulgated by the Board of Chemical Tests for Alcoholic Influence which has, by statutory design, the authority “to approve satisfactory techniques, methods and equipment for chemical tests for alcoholic influence . . ..”
The ampoules, we note, may indeed provide an accused with an opportunity to impeach the test results as recorded by the breathalyzer, that is, to challenge, on strictly technical grounds, the represented degree of accuracy of any specific breathalyzer device, but such an effort if successful, could only reflect on the credibility or weight to be given the test result and could not, by itself, have conclusively established the innocence of the accused. See People v. Hitch, supra, 12 Cal.3d 641, 17 Cal.Rptr. at 18, 527 P.2d at 370. The test results, therefore, cannot be considered material in the very same context to which the Court in Brady addressed itself. A re-examination of the ampoules, if technically feasible, would fall short of producing evidence which could be characterized as material as to the issue of guilt or innocence. Defendant’s objection goes more properly to the weight to be assigned the test result in the lower court’s evaluation of the facts as presented, than to its admissibility, given the strict adherence here in evidence to the rules and procedures established by the Board for the conduct of such examinations. We are satisfied that the defendant’s trial was a fair one and that his right to due process of law was in no way impaired by the lower court’s decision to admit the evidence in question.
For all of the above and foregoing reasons, the judgment and sentence appealed from is accordingly
Affirmed.
BUSSEY and BLISS, JJ., concur.