I’ve written in the past about how cops have a disturbing tendency to destroy or "lose" critical evidence in drunk driving cases. See, for example, Why Do Police Destroy DUI Evidence?, Why Do Police Erase DUI Videotapes? and Why Do police Always Destroy Breathalyzer Evidence?. Destroying or losing evidence is, of course, a convenient way to make sure there is nothing to contradict the police version of the facts.
The issue of immediate destruction of breath samples — which can be easily and cheaply saved for later reanalysis by the defense — was raised a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state reversed the conviction:
Due process simply demands 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 sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).
How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.
So why isn’t the evidence saved in DUI cases today? Because the Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:
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 also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).
What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…
1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?
2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would be so much later that it would probably not be relevant or admissible in court.
So what about blood samples? Can cops just throw these away, too? Well, here we go again…..In today’s news (note the plug for one of my law firm’s attorneys at the end of the article!):
Court Rules Police Cannot Destroy DUI Blood Sample
Minneapolis, MN. March 29 – Minnesotans accused of driving under the influence of alcohol (DUI) have the right to independently test the blood sample evidence taken by police. Should law enforcement refuse to release that sample on request, the state court of appeals ruled Monday that such conduct violates due process and merits exclusion of the blood evidence at trial.
In March 2010, David Hawkinson was arrested for DUI in the city of Plymouth. He consented to have his blood drawn and tested. The Bureau of Criminal Apprehension estimated Hawkinson’s blood alcohol content (BAC) at 0.11, in excess of the legal maximum of 0.08. Three months later, Hawkinson’s attorney requested the blood, only to learn just before trial that it had been destroyed. A Hennepin County District Court judge ruled the evidence of the blood sample should be excluded because the city refused to turn over the evidence.
State prosecutors appealed, arguing it was up to Hawkinson to prove the destroyed evidence would somehow have exonerated him. The three-judge appellate panel disagreed with the state.
"The right to determine whether evidence is ‘favorable to an accused’ does not belong to the state: the state may not determine what evidence is definitely, probably, or possibly not favorable and then destroy it after the accused has specifically and in writing requested that it be preserved without violating due process," the appeals court ruled. "Here, because there was no evidence other than the blood sample that respondent had driven with an alcohol concentration exceeding .08, the destruction of the blood sample was not harmless error."
The ability to independently test blood samples is important given the problems with breathalyzer machine calibration nationwide. In Washington, DC the city’s attorney general admitted at least 300 drivers were prosecuted based on readings from faulty machines between 2008 and 2010. Another 82 drivers were falsely accused based on unreliable blood tests in Colorado Springs, Colorado’s crime lab.
In Los Angeles, California attorney Lane Scherer defended a client accused of having a BAC of 0.15. According to Lawrence Taylor, author of DUI Blog, restesting the blood sample showed the a BAC was actually 0.13. As the client maintained his innocence, Taylor’s law firm had a $1200 DNA test performed on the blood sample, which found the accused man was indeed innocent because the crime lab had mixed up the blood samples.
With the blood sample excluded, no case remains against Hawkinson…