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People v. Hedrick10/25/1976
n preserved. In a suppression hearing under Colorado law, the burden of proving compliance with constitutional requirements is on the prosecution. See, e.g., Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972); People v. LaRacco, 178 Colo. 196, 496 P.2d 314 (1972); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); People v. Chacon, 177 Colo. 368, 494 P.2d 79 (1972); People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971); see also People v. Cram, 180 Colo. 418, 505 P.2d 1299 (1973). The majority opinion departs, without benefit of citation, from this well-established principle. The majority opinion places the burden of proof upon the defendant by explicitly penalizing the defendant for the failure to produce evidence that the sample taken by the prosecution was preservable.
The prosecution has the duty to make earnest efforts to preserve samples of incriminating evidence. See People v. Hitch, supra; United States v. Bryant, 439 F.2d 642 (D.C. App. 1971). No showing of earnest effort was made. By leaving the option of an unimpeachable breath sample open to the state, the defendant is denied the opportunity to effectively examine the most crucial evidence against him. He is left only with the naked results of the test. This violates both the spirit and the letter of discovery and fundamental fairness.
Accordingly, I would sustain the trial court's ruling and dismiss the charges against the defendant because of a denial of due process.
Judges Footnotes
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