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People v. Trombetta3/28/1983
ale -- is sound and that the same result should prevail in California. Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. (People v. Hitch, supra, 12 Cal. 3d at pp. 652-653.)
With the exception of the cases reviewed in this decision (i.e., AO16358, AO16374, AO17265, AO17266) this holding will apply prospectively only to tests performed after this decision has become final. Although we place primary reliance upon People v. Hitch, supra, 12 Cal. 3d 641, it may reasonably be presumed that law enforcement activities in breath testing have been performed in good faith reliance upon People v. Miller, supra, 52 Cal. App. 3d 666,
which, as we have noted, reached a conclusion contrary to our holding today.
The Trombetta and Cox groups of appeals are dismissed; in the Ward and Berry proceedings, writs of habeas corpus will issue granting new trials at which the intoxilyzer evidence will be excluded.
Disposition
The Trombetta and Cox groups of appeals are dismissed; in the Ward and Berry proceedings, writs of habeas corpus will issue granting new trials at which the intoxilyzer evidence will be excluded.
CHRISTIAN, J. I concur fully in the judgment and write separately only to emphasize that by this decision we do not prescribe or recommend any particular devices or procedures but hold simply that those before us in these cases do not satisfy the due process requirements of People v. Hitch (1974) 12 Cal. 3d 641 [117 Cal. Rptr. 9, 527 P.2d 361]. In each case, the arresting officer urged the defendant to choose the breath rather than the blood or urine test but failed to inform him that as a consequence of this selection no sample would be retained. In none did the officer advise the driver of his right to preservation of a breath sample and obtain from him a waiver of that right. The Arizona Supreme Court has held that such a procedure is constitutionally adequate. (Baca v. Smith (1979) 124 Ariz. 353 [604 P.2d 617, 618-620].) As no driver here gave a knowing and intelligent waiver of his right to preservation of evidence, that question is not reached here. Similarly, we do not consider here a situation in which police establish and diligently follow rigorous and systematic procedures for preservation of samples but circumstances beyond their control frustrate retention of a sample in a particular instance. As the majority opinion indicates, the core requirement of Hitch is establishment of and adherence to procedures which ensure fairness in the administration of field tests. The responsibility for designing those procedures lies with the Legislature and with state and local law enforcement agencies.
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