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People v. Bally11/12/1981
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE
Crim. No. 21403
1981.CA.40163 ; 178 Cal. Rptr. 96; 125 Cal. App. 3d 584
November 12, 1981
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY AMEA BALLY, DEFENDANT AND APPELLANT
Superior Court of Contra Costa County, No. 23319, Richard Patsey, Judge.
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Richard S. Kessler, Deputy State Public Defender, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Ronald E. Niver and Herbert F. Wilkinson, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Elkington, Acting P. J., with Grodin, J., and Ragan, J., concurring.
Elkington
Defendant Bally was charged with driving a motor vehicle "while under the combined influence of intoxicating liquor and a drug, to wit: Diazepam [Valium], and when so driving did
an act forbidden by law," i.e., crossed a double yellow center line, which act proximately caused bodily injury to three persons, thereby violating Vehicle Code section 23102.
His appeal is from an order granting probation and he makes but one contention of error, as follows: "The trial court committed reversible error by denying appellant's motion to suppress the results of his blood test based upon the loss of his blood sample."
The relevant evidence is uncontroverted.
A "lab technician" on behalf of the arresting police officers had drawn two vials of blood from Bally's body. A medical bioanalyst then tested one or both of the vials and found a blood alcohol level of .27 which indicated that Bally had imbibed the equivalent of at least 12 or 13 one-ounce shots of 86 proof whiskey. Presence of Diazepam was also found. Thereafter at Bally's request a blood sample of the vials was sent by its official custodian to a private laboratory chosen by Bally for an additional test. The sample was sent by regular first class mail, but it was never received at the laboratory. Bally has thus been denied an opportunity to have a technician of his choice analyze, report, and testify in relation to the alcohol and drug content of his blood, while driving his motor vehicle.
Bally's reliance is upon People v. Hitch (1974) 12 Cal. 3d 641 [117 Cal. Rptr. 9, 527 P.2d 361].
People v. Hitch concerned the prosecution's nonpreservation of a test ampoule of a drunken driver suspect's breath, which will reasonably be equated with the blood samples of Bally in the case before us. The court held that when a police agency has acquired "material evidence on the issue of the driver's guilt or innocence of the charge of driving a vehicle under the influence of intoxicating liquor," it is under "a duty to preserve and disclose such evidence." (12 Cal. 3d, p. 652.) " hold," the court said, "that, where, as here, such evidence cannot be disclosed because of its intentional but nonmalicious destruction by the investigative officials, sanctions shall in the future be imposed for such nonpreservation and nondisclosure unless the prosecution can show that the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous
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