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Childs v. State7/13/1999
not know whether the procedure used by the Broken Arrow police, in operating the Intoxilyzer or the maintenance of the Intoxilyzer were in conformity with board regulations. However, for purposes of this appeal, Childs will not offer any evidence that said procedures were not followed and stipulates that if called, the Broken Arrow police officers would testify the proper procedures and maontenance were followed."
In failing to object in any manner to the procedure, performance or accuracy of the intoxilyzer, Childs in effect conceded the accuracy and performance of the test.
"The equal protection clause of the Fourteenth Amendment of the Federal Constitution [as well as Oklahoma's own equal protection provisions in our due process clause are] not to be construed as introducing a factitious equality without regard to practical differences that are best met by differences of treatment." Wilson & Co. v. Hickey, 97 P.2d 564, 566 (1940). We can only assume, without evidence to the contrary, that the practical differences in the two breath testing processes account for the differences in their statutory treatment. Id.
Given the strong presumption in favor of the constitutionality of 47 O.S. 1992 Supp. § 752(F), the marginal record provided upon which this Court could evaluate the machine(s) in question and the affirmative statements from the United States Supreme Court extolling the reliability of the intoxilyzer, this Court simply cannot engage in the constitutional examination proposed by Childs.
In addition to Childs' failure to establish and support an assertion of equality between the two testing methods, Childs also fails to establish the prejudice exacted upon him through the non-collection of an independently testable sample.
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 488 - 489, 104 S.Ct. 2528, 2534 (1984); See also City of Las Vegas v. O'Donnell, 686 P.2d 228, 230 (Nev. 1984) (defendant required to demonstrate prejudice in loss of breath samples).
Childs has provided this Court with nothing which would indicate an independent sample would have had exculpatory value. This Court can only assume, based on the Supreme Court's Discussion and having nothing to counter such, that any independent test would have likely proved inculpatory and not exculpatory. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. In addition, Childs made no effort to demonstrate the inadequacy of other means available to him for challenging the accuracy of the intoxilyzer. Childs could have looked for and presented evidence of faulty calibration, possible radio wave interference which could cause the machine to measure incorrectly, or operator error of some kind. See Id. at 489 -90, 2534 - 35. There is no evidence Childs searched for these or any other testing mis-steps. Finally, Childs, like all other Oklahoma drivers suspected of driving under the influence, was perfectly at liberty to request any additional test be administered to determine the concentration of his blood alcohol level. 47 O.S. Supp. 1995 § 751(E). These opportunities were missed as a result of Childs' own neglect; having not acted upon them, Childs has failed to carry the burden that he was either prejudiced or had no other means ava
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