Warren E. Burger: We will hear arguments next in California against Trombetta. Mr. Kirk, I think you may proceed whenever you are ready.
Charles R.B. Kirk: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court. Recently in South Dakota versus Neville this Court again decried the carnage caused by drunken drivers on our highways. Spurred on by increasing public awareness, and encouraged by the federal government, the states are stepping up law enforcement efforts to combat this national problem, and one of the most effective tools in law enforcement's arsenal is the breath alcohol test. Such tests are used in every state, the District of Columbia, and Puerto Rico. In California, which I am sure is typical, breath alcohol tests are used in two-thirds of all drunk driving arrests. Evidential breath test instruments provide a rapid, economical, and accurate means of immediately determining the suspect's blood alcohol content. Because they are self-contained, automatic units, they can be easily and accurately operated by a field officer with minimal training. The ease and rapidity of operation allows the officer to complete the test quickly and return to the highway to do his job. Immediate results also permit additional sample collection where an unexpectedly low result suggests intoxication by combination of alcohol and drugs. Breath testing is also the least intrusive of the options from the suspect's point of view. It does not involve bodily intrusion or invasion of privacy, and assures the shortest period of detention. Breath testing is broadly accepted as valid. Self-contained devices avoid the possibility of human error or manipulation and allow subsequent checks upon the accuracy of the test system. Now, this case is here on certiorari. After a California Court of Appeals held unconstitutional as a violation of federal due process use of an evidential breath test instrument unless that device preserves the breath sample actually tested for possible retesting by the defendant or alternatively a procedure is followed which collects an equivalent sample for the defendant's use. In the context of this particular case, the instrument at issue is an Intoxolizer, widely used on a national basis, and constituting 82 percent of the evidential breath test devices in California. Now, I will first focus on the machine itself, and then I am going to outline why its use does not offend due process. The Intoxolizer does not save any sample for possible retesting. In use, the suspect blows through a tube leading into a chamber within the machine. When the device determines that the air deep in the lungs has been reached, the sample is momentarily held for analysis using infrared light, and the blood alcohol content is measured. Then the test sample is automatically pumped out of the machine, and the chamber is purged with clear air. The purge cycle promotes test integrity by ensuring that no residual alcohol remains as a contaminant, that the instrument is starting from zero, and that no capricious event occurs to interfere with test accuracy. It is actually a diagnostic step which protects the defendant. The machine must be purged to prepare it for another test on that same person or another individual. Thus the test sample purged to clear the machine is automatically destroyed as an integral part of the analytical process, and it is never collected or reduced to a form which permits practical retention. The decision of the Court of Appeal by its terms extends not only to the Intoxolizer but to all evidential breath test machines. The others approved for use in California also destroy the sample during the testing process. Hence the decision condemns as unconstitutional all California breath testing, and should such a rule be extended to the other states, will greatly impair the effort to control the drinking driver. The great national concern over this disquieting prospect is reflected in the amici briefs which have been filed in support of the state of California.
Sandra Day O'Connor: Mr. Kirk, how widespread is the use of the Intoxolizer around the country?
Charles R.B. Kirk: As far as I know, Your Honor, it is used virtually from shore to shore. Obviously, each state is free to choose its own machines. The National Highway and Traffic Safety Administration has approved a great number. I know that the Intoxolizer is favored and used exclusively in a number of states. Now, on what basis did the California court--
John Paul Stevens: General Kirk, would you just help me out on one thing? I may have gotten the wrong impression. I thought from the material at the beginning of your opponent's brief that there was another breath testing device that did conserve the sample, and that was permissible to use in California. Am I wrong on that?
Charles R.B. Kirk: --Your Honor, that is talking about the indium tube device or actually the gas chromatograph, which analyzes an indium tube as part of the process. That is true, that exists, and that is approved in California.
John Paul Stevens: I see. But it isn't widely used--
Charles R.B. Kirk: No, Your Honor. In fact--
Sandra Day O'Connor: --in California?
Charles R.B. Kirk: --It is not widely used in California, and there is only one single county which has ever made any kind of continuous use, and that is the county of San Bernadino, which since 1973 has used it because of the difficulty of collecting breath samples in a widespread county. Now, on what basis did the California court make such a wholesale condemnation in Trombetta, purportedly under the due process clause of the federal constitution as interpreted by the California Supreme Court? In People versus Hitch, that court looked to the opinion in Brady versus Maryland and divined a constitutional principle requiring preservation of any evidence which might possibly be favorable to the accused. Now, I say divined because that is exactly what the California Supreme Court did. The Hitch rule cannot be found in Brady versus Maryland or in any other decision of this Court nor can it be found anywhere in the Constitution. In a criminal case, the state must prove guilt beyond a reasonable doubt, but the Constitution does not require proof beyond all possible doubt and to an absolute certainty. The state need not negate all speculative possibilities, which seems to be the primary focus of respondents and their amici. And the Trombetta decision itself imposes sample preservation to make proof of guilt an absolute certainty. The Hitch-Trombetta preservation requirement is predicated upon a claimed need to provide the defendant with any evidence which has a reasonable possibility of yielding results favorable to the defense or casting doubt upon the state's case. It was just that "might possibly" standard which this Court recently rejected in United States versus Valenzuela Vernow. The Hitch-Trombetta standard is in fact no standard at all. As this Court observed in Killian versus United States, almost everything is evidence of something, and in Valenzuela Vernow, possibilities of favorable evidence are limited only by the imaginations of counsel and judges. This is especially true, I believe, with any analytical measuring or recording method. Ordinarily, the only prerequisite to the admission of scientific tests are proof of the expert's qualifications, accuracy of the equipment, and reliability of the method followed. It is not required that the results of accepted methods be infallible to be admissible, possibilities of error going to weight rather than to admissibility. The Trombetta and Hitch cases depart from this rule applicable to physical testing and require as a matter of federal due process that there must be a secondary verification of the primary test before the primary test is admissible. Now, the irony in this case is that there are few areas in which the defendant is so well protected. The Intoxolizer, as are all evidential breath test instruments in California, has been tested and approved by the National Highway and Traffic Safety Administration, a neutral federal agency. It has also been subjected to the rigid scrutiny, including blood-breath correlation studies on live subjects by the California Department of Health, which is a neutral agency. It is not involved in law enforcement. It does not sell machines. This is the neutral agency designated by our legislature as having the expertise in this scientific field. And when an instrument is approved, it can only be used following regulated procedures. It is periodically checked for accuracy, and under these controls, the Department of Health has itself concluded that there is no possibility of undetected error. Now, Brady cannot be the source of the Hitch-Trombetta preservation rule, since Brady is not a preservation case at all. It is a disclosure case. Brady requires the state to disclose exonerating material evidence to the defendant. It is based upon the notion of fair play inherent in our judicial system. The form or continued physical existence of the evidence is irrelevant to the duty to disclose it. This case does not present a Brady violation at all. To violate the rule, there must be a suppression of evidence. The evidence must be favorable to the defense, and the evidence must be material. Destruction in the ordinary course of an analytical process is not suppression. This was not evidence favorable to the defense. The contrary is true. Nor would a preserved or separately collected sample yield material evidence, since reanalysis is itself subject to error and cannot be verified. Thus a discrepancy between the evidential breath test results and the results of referee analysis creates a conflict in the evidence which can be resolved but only by going back to the evidential breath test and rechecking its accuracy. This can already be done without a preserved sample. Trombetta thus imposes a duty of preservation yielding at most inconclusive results, creating the circular route back to the starting point, which is the evidential breath test machine. Certainly the Constitution does not require such wasted effort. In any event, sample prevention was not necessary, and therefore not material in a constitutional sense to enable a probe of the accuracy of the test results since several suitable alternate methods were available for this purpose.
John Paul Stevens: General Kirk, may I just ask this? Supposing you had taken a blood sample instead of the breath sample. Do you think the officer could have thrown it away without raising any questions?
Charles R.B. Kirk: Well, Your Honor, as a practical matter that has to be sent to a laboratory and analyzed there before it is of any value to us.
John Paul Stevens: Supposing that was done, and after they got through they just threw it away, they just made a record of it. Would that raise any questions for you?
Charles R.B. Kirk: Well, I certainly think that it would expose the state to challenge as to the validity of the results. I think this is where we run into the kinds of attacks that the defense can make. I do not believe that due process requires that the defendant necessarily have an independent right to check everything. What I think it does is put a big hole in the state's case.
John Paul Stevens: Just a matter of credibility--
Charles R.B. Kirk: Yes, Your Honor.
John Paul Stevens: --as to the weight of the evidence. Another question I wanted to ask you, since I have already interrupted you, if the two different procedures, one of which was that you could preserve the sample and the other of which, the one you actually used, were equally costly to the state, there is just no different, you just chose... you just elected to have the one that you are using rather than the other one, would that present any problem?
Charles R.B. Kirk: Well, again, I don't think that due process requires us to resort to any particular procedure. Frankly, I think the state would be better off if we could cheaply and accurately preserve something, because we would blow all these attacks out of the water.
John Paul Stevens: The question I am really getting up to is, why don't you do that?
Charles R.B. Kirk: Because we do not believe it is possible. We do not--
John Paul Stevens: They do this in Colorado, don't they?
Charles R.B. Kirk: --In Colorado, according to the statistics that I have cited to the Court in the Montoya case, there is an 80 percent error. Colorado, if it wishes, can corroborate something with a Ouija Board, but I don't think that the due process clause requires the state of California to adopt that procedure.
Warren E. Burger: How long would blood remain in a static condition so that it could be tested and retested weeks later?
Charles R.B. Kirk: Under our regulations, Your Honor, it can be stored as long and is kept as long as one year.
Warren E. Burger: Well, stored, but it must be refrigerated, must it not?
Charles R.B. Kirk: Yes, it has preservatives in it, and it is stored under refrigerated conditions, and it can be retested for up to one year accurately.
Thurgood Marshall: And then you have about five days of tests as to what the preservatives due to it.
Charles R.B. Kirk: That does happen, frankly.
Thurgood Marshall: Don't you? Yes.
Charles R.B. Kirk: Now, due process is the concept of fair play. In a trial, it means a reasonable opportunity to challenge the state's case, and it is violated only when the opportunity to challenge is so restricted as to make what should be a disciplined adversary contest into an ordeal in which the defendant plays only a passive role.
William H. Rehnquist: Is this your own idea, or are you quoting from something?
Charles R.B. Kirk: Well, I am slightly paraphrasing some decisions of this Court, Your Honor. It is not a direct quote. But proof of physical evidence... and as a matter of fact that comes from that last paragraph of Augenblick, with slight changes, but proof by physical evidence and its preservation for that purpose have never been considered a basic requirement of due process. Indeed, the vast majority of the evidence in any case is neither physical nor corroborated by it.
Thurgood Marshall: General, is there any procedure for keeping this air?
Charles R.B. Kirk: In the opinion of the state of California, no, Your Honor.
Thurgood Marshall: No evidence was produced in this case?
Charles R.B. Kirk: In this case there was some evidence, but there were no findings by the trial court to that effect, as contrasted with, for example, the State of Colorado case--
Thurgood Marshall: First of all, I would like to know how you catch it. Then I would like to know how you keep it.
Charles R.B. Kirk: --Well, that's one of the--
Thurgood Marshall: There is nothing here in the record that will help me on that?
Charles R.B. Kirk: --In the record, Your Honor, I believe there is some testimony from a defense expert, with which we would not agree by any means, suggesting that you could capture it with an indium tube or with silica gel. The indium tube does capture true air. The silica gel simply absorbs alcohol, does not capture true air. Now, we have indicated in our brief that as far as the Intoxolizer itself is concerned, the machine that we use, by choice, there is no device approved or available that you can attach to that machine to capture the air.
John Paul Stevens: Well, but you can capture the air with a different machine. That is what you told me, I understand.
Charles R.B. Kirk: Yes, Your Honor. You could capture the air with a different machine, but then that means a different sample. And it is our position that you have an apple and an orange, and one is not the same fruit. For a proceeding to be fair, due process does not require anything more than a reasonable opportunity to challenge the state's evidence. This in turn depends in part upon the nature of the evidence actually presented. There is no doubt that preservation of a substance scientifically tested, if reliable preservation is both possible and practical, would be ideal. As I have said, it would make the state's job a lot easier by removing any possibility of doubt and giving us a stronger case, but frankly, we don't believe this practical or possible at the present time.
William H. Rehnquist: And you also say it is not required by the constitution.
Charles R.B. Kirk: Yes, because due process and fair trial does not require only one kind of procedure. As long as any alternative gives the defendant an opportunity to challenge the state's case, due process is satisfied. That some may consider one procedure preferable to another is not a constitutional dimension.
William H. Rehnquist: This sounds to me like a very amorphous concept you are talking about, a fair opportunity to challenge the state's case. I mean, supposing the state has four or five eye witnesses, and the defendant doesn't have any access to them at all. Now, is cross examination of the eye witnesses what you would call a fair opportunity to challenge?
Charles R.B. Kirk: That has been the traditional rule in this country, Your Honor.
William H. Rehnquist: I just don't see how a vague phrase like "a fair opportunity to challenge" moves the ball much in this rather particular situation, where we are talking about, I take it, whether Brady against Maryland should be extended.
Charles R.B. Kirk: Well, what we are talking about here is what process is due, what is fair.
William H. Rehnquist: But we don't have to start all over with the adoption of the Constitution in every case we hear argued. I mean, we are focusing in the general area of Brady against Maryland, aren't we?
Charles R.B. Kirk: Certainly. I am not sure I understand the question.
Warren E. Burger: Well, it is your case to argue.
Charles R.B. Kirk: When physical evidence is lost or destroyed, it is true that the defendant can no longer see it for himself, but neither can the jury, and the absence of the physical proof both diminishes the weight of the state's case and exposes it to doubts arising from the loss. With scientific tests, the defendant can still explore the competence of the expert, acceptability of the methodology, and adequacy of the equipment to challenge the test validity, and secure in the knowledge that the state cannot remove all possibility of doubt by presenting the physical evidence itself, the defendant has even greater latitude in creating reasonable doubt than perhaps existed before. Now, there are additional protections with evidential breath test instruments like the Intoxolizer. In California, extensive studies are done by the Department of Health on each machine. These are matters of public record. A record is kept of all periodic calibration checks of the instrument in question. The defendant's own test record is preserved recording the circumstances of the test. The instrument itself remains available for testing, and the instrument operator is available for cross examination.
Warren E. Burger: Is each report in some way coated so that the identification number of the particular machine as well as the operator is part of the permanent record?
Charles R.B. Kirk: Yes, Your Honor. Yes, it is part of the permanent record. You can always tie the machine to the particular test. This gives the defendant ample opportunity to probe the accuracy of the test. It is an acceptable alternative to sample preservation and assures a fair trial. But there is still a second alternative suitable for purposes of due process. Under California law, a suspect has a right to have his own sample collected, independently tested, and can use the results to challenge the state's case. The availability of this alternative, which has existed for years, is also adequate for this purpose. Now, Trombetta goes even farther than the Hitch case by requiring if not preservation, collection of an equivalent sample for use of the defendant. This goes beyond anything any court has required before. This imposes an affirmative duty to collect something the police did not themselves use or need.
Thurgood Marshall: Are you sure that these machines are available to the public?
Charles R.B. Kirk: These machines can be commonly purchased by anyone, Your Honor. As a matter of fact, a number of private laboratories own them.
Thurgood Marshall: I thought it cost around $2,200.
Charles R.B. Kirk: This particular machine costs $4,000.
Thurgood Marshall: That's right.
Charles R.B. Kirk: Now, the average person obviously is not going to go out and buy one, but he has access to them through private laboratories and the courts permit him to have access to the particular machine that he was tested on.
Thurgood Marshall: The average person knows that?
Charles R.B. Kirk: I beg your pardon?
Thurgood Marshall: The average person knows that?
Charles R.B. Kirk: I would not hazard to guess that, Your Honor, at all, but as a matter of fact when he gets into court he will know that he can go and test that machine if he wishes.
John Paul Stevens: General Kirk, can I ask you a question--
Charles R.B. Kirk: Yes, sir.
John Paul Stevens: --on that procedure? The California court, as I understand it, went beyond... you just made this point... went beyond the Hitch case in this case--
Charles R.B. Kirk: Correct.
John Paul Stevens: --and made its new ruling just prospective only, and it relied in part, at least the concurring judge did, on the failure to tell the arrested person that he had a choice between this procedure and the either blood or urine sample as opposed to a breath sample. To what extent does that requirement of advice underlie this decision? And is that a federal requirement or a state requirement in your view?
Charles R.B. Kirk: In my view, that is a state requirement. The statute has existed for a number of years, and the cases in California interpreted this particular statute as giving the person an absolute right but not imposing on the officer a duty admonition. That is, at least until recent enactment of a new statute to attempt to combat Trombetta, was the case. Now, of course, the officer has an affirmative duty to do it.
John Paul Stevens: Well, if that is the case, is it not possible that this judgment, at least insofar as the particular people before the court are concerned, rests on the state ground that they failed to give the advice required by state law?
Charles R.B. Kirk: Oh, no. On the contrary, Your Honor, the majority opinion has nothing to do with an admonition at all.
John Paul Stevens: I see.
Charles R.B. Kirk: It strictly says that you must preserve a sample, and because you didn't in this case, that violates due process and the evidence must be excluded. It has nothing to do with an admonition.
John Paul Stevens: I understand that is what the majority opinion says, but it is true that the officers did also violate state law in a way set forth in the concurring opinion.
Charles R.B. Kirk: No. No, Your Honor, that is incorrect. The officers did not violate state law. There was no requirement to admonish them under state law.
John Paul Stevens: I see.
Charles R.B. Kirk: And I do not believe the concurring opinion says that. What the concurring opinion suggests is that a way to avoid the problem would be to admonish the suspect and get a waiver.
John Paul Stevens: I see.
Charles R.B. Kirk: This is what the concurring opinion does, but that was not the state of the law at the time, and the decision does not rest on that at all.
John Paul Stevens: I see.
Charles R.B. Kirk: Now, the additional part of Trombetta, the collection part, casts the state in the role of an agent for the defense, and causes a serious distortion of the adversary process, and an incredible tension between competing interests and duties on the part of the officer. Now, we submit that Trombetta is wrong and should be reversed. I would like to reserve my remaining time for rebuttal.
Warren E. Burger: Very well. Mr. DeMeo?
John F. De Meo: Mr. Chief Justice, and may it please the Court, petitioner argues for a rule on the due process duty to preserve which in the final analysis would permit law enforcement to choose unilaterally methods of testing which in effect would use up or consume or discard or destroy the evidence which is vital on the issue of the guilt or the innocence of an accused in the driving under the influence case.
Warren E. Burger: Would you find it constitutionally objectionable if the officers were trained to take a blood test and... take a blood test right on the scene?
John F. De Meo: I would not, Your Honor. The law in California at least at this time in the case of the collection of blood does provide for the retention for a year, and provides that the defendant may have a sample for retesting so that would certainly give him the right to have a retest.
Warren E. Burger: Do they now take blood tests right at the time of the arrest, out on the road?
John F. De Meo: No, they do not, Your Honor. It requires someone who is properly trained to do that in the medical discipline. In the event that the government does utilize a device which does destroy the evidence, and if that evidence, the result of it is inculpatory, then California argues that it should be entitled to introduce that evidence on the issue of guilt of the defendant--
Thurgood Marshall: May I stop you right there?
John F. De Meo: --Yes.
Thurgood Marshall: Does the government destroy this evidence, "destroy"?
John F. De Meo: In effect, that's what happens, Your Honor.
Thurgood Marshall: Well, why don't you say it? You said that they destroy it.
John F. De Meo: Yes, they--
Thurgood Marshall: They don't do a thing. That is what you're complaining about, that they don't do something.
John F. De Meo: --They don't preserve.
Thurgood Marshall: You want to put an affirmative duty on them, not to stop them from doing something, but to make them do something. There is a considerable difference.
John F. De Meo: Your Honor, what I do want them to do is, when they embark upon the process of a collection of evidence which bears directly on the guilt or innocence of the accused, I want them then in that case to be sure that they preserve a sample of that evidence or its equivalent so that the defendant on the trial is not placed in the position where he must only be permitted to cross examine the machine that was used or a piece of paper where the results of the test are reported to cross examine as to whether or not it is connected up or not with this defendant, or perhaps there was an error, or whether or not in effect the expert who is testifying may not have made an error in Calibrating the machine. I think that for a fair trial for a defendant accused of this type of a crime, he must be armed with the same type of artillery as the prosecution has. Namely, he must be entitled to retest that evidence. Why should he have to rely on what the government says the result is?
Warren E. Burger: Well, there is one way he could do that if he wanted to spend $4,000 to buy a machine and carry it in the car with him. I suppose that would do it, wouldn't it?
John F. De Meo: Yes, Your Honor, I suppose that would. It would present a rather impractical approach, I would say, with all due respect.
Sandra Day O'Connor: Well, Mr. DeMeo--
John F. De Meo: Yes.
Sandra Day O'Connor: --why is it impractical for someone who has plenty of his own breath still on his body to preserve it for himself if he wants to?
John F. De Meo: Excellent, Your Honor.
Sandra Day O'Connor: People who are arrested for DWI often resort to their own requested blood samples or breath tests. You can do that independently.
John F. De Meo: You can, Your Honor. The problem with that is, and the problem with California Vehicle Code Section 13.354(B), which does say that a defendant who is arrested for driving under the influence may request a blood, breath, or urine test, the problem is that although we are all presumed to know the law, it is folly to assume that most people are aware of that right, and the other part of it is that when you are under the stress of an arrest, usually down at a jailhouse where you are incarcerated, it is difficult to arrange for an expert to come out to give you a test. There are a lot of problems that arise with that. And certainly I would like to make this point, that government is in a superior position with its resources. I often hear the question asked, why does government have to do everything? But in this instance they have the resources to preserve, and the timeliness of the preservation of that sample is so important to its reliability subsequently that by the time that one might arrange for a criminalist to come out or a doctor to come out to the jailhouse for the person in distress to try to look through a telephone book and find someone, sometimes late at night, would present a difficult obstacle when, on the other hand, government has the means to do it and it is simple.
William H. Rehnquist: But the fact that the government had the means to do it and it is simple certainly does not mean it is constitutionally required. I don't think any of our cases say that. I mean, you are talking about it would be nice for the government to do it. Perhaps it would. But that doesn't mean there is a constitutional requirement.
John F. De Meo: Well, not nice, Your Honor. I say it is vital to the defense of the defendant in one of these cases to be entitled to--
Speaker: Do you mean it is constitutional then?
John F. De Meo: --Yes, Your Honor.
William H. Rehnquist: I don't see why if it is vital... it may be vital in the sense that the defendant would be a good deal better off if the government did go to this extra expense, but that still doesn't make it a constitutional requirement. Is Brady the closest case you have to support here?
John F. De Meo: From this Court, Your Honor?
Speaker: Yes.
John F. De Meo: No, I believe that the language in Agers would indicate that in defining materiality, that if the evidence might have affected the outcome of the trial, and--
William H. Rehnquist: But Agers is just talking about the duty to turn over exculpatory evidence which is in existence.
John F. De Meo: --Yes.
William H. Rehnquist: It doesn't say anything about any duty to preserve, nor does Brady.
John F. De Meo: Well, the problem is, Your Honor, that here there was no evidence to preserve. We don't know if it is exculpatory or not.
William H. Rehnquist: Then the answer is, you are not covered by Brady and you are not covered by Agers, because those cases dealt with when evidence was in existence.
John F. De Meo: By the same token, Your Honor, if the evidence is destroyed, we don't know whether it would have been favorable except that in this case--
William H. Rehnquist: That doesn't answer the question of what is the holding of Agers, what is the holding of Brady. Both of them hold where the evidence is in existence, you must turn it over. You say here it wasn't in existence as if that automatically calls for some extension. That is simply a different fact situation. It wasn't confronted in Brady. It wasn't confronted in Agers.
John F. De Meo: --Your Honor, in this case the evidence was in existence, but by virtue of the method that was used to test it, it left existence. It wasn't--
Thurgood Marshall: Let's test that. You blow into the machine.
John F. De Meo: --Yes.
Thurgood Marshall: And it registers numbers, right? By the time it registers the final number, where is the air?
John F. De Meo: It is my understanding--
Thurgood Marshall: Where is the air?
John F. De Meo: --It is in the machine.
Thurgood Marshall: No, sir, it has gone out of the machine.
John F. De Meo: It is my understanding, Your Honor--
Thurgood Marshall: Hasn't it?
John F. De Meo: --that this Intoxolizer requires the operator to push a purge button to purge it out, in the testimony of the people's expert.
Thurgood Marshall: Purge what is left out. But the air goes--
John F. De Meo: Inside.
Thurgood Marshall: --If the air doesn't go through, how are they going to test it?
John F. De Meo: Your Honor, the evidence in the case by the criminalist that was produced by the defense was that it would stay in the machine more than 20 minutes if it was not purged out of the machine, so that they do have it captured and collected, and of course with the silica gel device which can be adapted to this machine, they can capture that and subsequently test it.
Thurgood Marshall: What kind of device?
John F. De Meo: It is called a silica gel tube, Your Honor, that fits on the outboard side of the Intoxolizer, an adaptation. That is what they use in Colorado. Therefore it collects.
Thurgood Marshall: I am talking about California.
John F. De Meo: Yes, sir.
Thurgood Marshall: So you want them to put that on the machine.
John F. De Meo: Or I want them to use the indium proof crimper device to preserve, or I want them to use the equivalent, which 13.353.5 of the Vehicle Code now provides.
Thurgood Marshall: If they gave them a blood test, you wouldn't have any of these problems, would you?
John F. De Meo: I wouldn't except that the--
Thurgood Marshall: You would not, would you?
John F. De Meo: --No, Your Honor, but you could ask for another test.
Thurgood Marshall: So since he chose one, the state has to go and preserve the air that is gone or bring back the air that has gone.
John F. De Meo: Or take another substantially similar test, or its equivalent, Your Honor. That is the point.
Warren E. Burger: We will resume there at 1:00 o'clock, counsel.
John F. De Meo: Thank you.
Warren E. Burger: Mr. DeMeo, you may resume.
John F. De Meo: Mr. Chief Justice, and may it please the Court, commenting briefly on the Brady case, it is our position that Brady necessarily applies to the situation at hand, because if Brady only requires a disclosure of that which is preserved in a fixed form by law enforcement, then it seems that it would be easy to avoid Brady by law enforcement's use of methods of testing material evidence which use up or discard or destroy the evidence in the process of the test. Therefore, we feel that it necessarily applies to this kind of a situation. If you can unilaterally use an instrument which does away with the evidence that is vital, then in effect we believe that Brady is violated.
Warren E. Burger: I am not sure about your view on part of this constitutional question. It is the infirmity of the evidence that troubles you. Now, suppose each police car had two or three of these machines. They tested the man once, and then put that machine away, and then waited two or three minutes, and then tested him again, and if necessary tested him on a third machine, and if they all agreed, would that meet your constitutional objections?
John F. De Meo: It really would not, Your Honor, unless one of the methods of preservation gave the defense the material to test through its own criminalist or referee analysis. We think that he should have the opportunity of testing that evidence himself rather than merely accepting the--
Warren E. Burger: Even if all of the machines agreed exactly?
John F. De Meo: --Even if all the machines agreed exactly, and in that regard, Your Honor, I might say that if the defendant is accorded this right, which is simple for law enforcement to do to preserve, that if it does agree through the defense criminalist analysis, I think it would have some beneficial effect on the problem of persons who drive under the influence and cause accidents, namely, that if they see that they have no way of contesting the case, that there would be less congestion of the courts, more pleas of guilty, and these cases would be out of the way. That is a possible incidental benefit to society as a result of permitting that test, but we know--
Byron R. White: Do you think that even if this machine were wrong only once in a million times, the fact that it might be wrong only that seldom should nevertheless result in giving the defense the opportunity to ferret out that one in a million?
John F. De Meo: --Yes, Your Honor.
Byron R. White: Because I don't see any claims by you or any evidence or any statistical presentation that would indicate how often these results might be erroneous.
John F. De Meo: To answer your question, Your Honor, we feel that if any one person were convicted when if he had an opportunity to retest the evidence it would have been exculpatory, that the United States does not win in that kind of a situation, it loses. It is the same as the Iglio case, the same as the Moody case, where if there is false evidence that caused a conviction, it would fall within that ambit.
Byron R. White: Is the machine that produces this evidence, makes this reading, will it be in the same condition when the trial occurs as it was when the test was taken?
John F. De Meo: Not necessarily. It requires periodic maintenance. It requires calibration. There is evidence in one of the briefs that electromagnetic interference can cause it to malfunction, but I think the basic problem with it is that it is non-specific for alcohol. This particular Intoxolizer machine used in these cases, as the record shows in an uncontradicted manner, that, and there have been no experts to counter the experts of the defendants, what it means in being non-specific is simply that other types of properties cause this instrument to register as alcohol. For example, our own body metabolism has acetone. We have it in the blood, urine, and in the breath.
Byron R. White: Is this in the record?
John F. De Meo: Absolutely, Your Honor, in the testimony of Mr. Murray, our criminalist, and also in three affidavits filed in the traverse... in the habeas corpus--
Byron R. White: Is that what you call these witnesses, criminalists? Or criminologists? What do you call them?
John F. De Meo: --Criminalists, I believe they refer to themselves as, Your Honor. Experts.
Byron R. White: Is that in the dictionary? I guess it must be.
John F. De Meo: I think it is.
Byron R. White: What are they experts in?
John F. De Meo: In the analysis of body fluids, Your Honor, and in the machinery that was used in this case for the testing of alcoholic content in the blood.
Thurgood Marshall: You know, my problem is, you say that you want to preserve the evidence.
John F. De Meo: Yes.
Thurgood Marshall: The evidence is in your client, his breath. Why couldn't he preserve his own breath?
John F. De Meo: Well, because he doesn't have the instruments to do that at the time, and if it is not timely, it is not helpful.
Thurgood Marshall: Is he going to get the instruments later?
John F. De Meo: Not unless he has the--
Thurgood Marshall: Well, what good is it if he doesn't have instruments?
John F. De Meo: --Well, that's why--
Thurgood Marshall: What good is it if he doesn't have instruments?
John F. De Meo: --From the standpoint of the constitutional attack we are making, it seems that it is so easy and simple and feasible for the government to preserve that for him, and that should be weighed in the context of whether it is a constitutional violation. It is stipulated to be simple to preserve.
Thurgood Marshall: It is because it is cheaper for the government to do it?
John F. De Meo: It is easier, because they have the resources right there at hand. In fact, we had an instrument in California at the time approved by the Department of Public Health--
Thurgood Marshall: Was it there where this man was?
John F. De Meo: --I don't know the answer to that, Your Honor.
Thurgood Marshall: Don't you need to know?
John F. De Meo: I do know--
Thurgood Marshall: I mean, you are now down to saying that the government can do it better than you can do it.
John F. De Meo: --It was available to the government.
Thurgood Marshall: Well, the government did. They made the test.
John F. De Meo: Well, Your Honor--
Thurgood Marshall: You don't have to do... then the government has to make another test. Right?
John F. De Meo: --To use an earnest effort to preserve.
Thurgood Marshall: And to preserve it and test it over and over again.
John F. De Meo: Not over and over again, Your Honor.
Thurgood Marshall: How could they be sure it is right?
John F. De Meo: Just to preserve it so that the defendant can check the government's efforts.
Thurgood Marshall: What provision in the constitution says that because the government can do it better than the defendant, the government must do it?
John F. De Meo: Well, we are saying that the Fourteenth Amendment says that, Your Honor, and the reason we say that is because in these cases it seems that the superior ability and resources are important.
Thurgood Marshall: I for one... I resent talking about the constitution as saying it seems. The constitution either does or it does not. Do you agree with me on that?
John F. De Meo: I do, and we contend it does, Your Honor.
Thurgood Marshall: Well, let's give up the "seems".
John F. De Meo: Yes, Your Honor. Very well.
Warren E. Burger: Once the police have stopped the car with a suspicion that the driver is intoxicated and they have taken this breathylizer test once, can they use that machine again without... can they test the next drunken driver they meet and still preserve the material of the first one?
John F. De Meo: If we are talking of the Intoxolizer, the one that was used in this instance--
Warren E. Burger: Yes.
John F. De Meo: --from the standpoint of use at the jailhouse, the answer is that the only way they can preserve it on that machine is to apply what we call the silica gel adapter. California has not approved that yet, but Colorado has, and our record indicates that it is accurate to do it, it is easy to do it, and it can be done, and that the results--
Warren E. Burger: Would that enable them... My question is, again, would that enable them to use that same machine on the next drunken driver, and the next one, and the next one, that same machine?
John F. De Meo: --Oh, yes. Oh, yes. The Intoxolizer can be used over and over again.
Warren E. Burger: Well, on that same evening, without discharging some of the materials?
John F. De Meo: Oh, it must be purged first, of course. Yes. The breath that is within the machine must be purged out of it before the next person is tested.
Warren E. Burger: How can they preserve it if they purge it?
John F. De Meo: Well, by adapting the machine to a silicon gel tube that fits on the outboard side.
Warren E. Burger: To in effect a different machine from the one they are using now.
John F. De Meo: A slight adaptation, Your Honor, a very simple one, as the record would indicate.
Byron R. White: Suppose this breath was preserved, like you would like to have. What would you do with it?
John F. De Meo: We would... I was going to get to that, and I am glad we are at that, Your Honor. There is an instrument knows as a gas chromatograph Intoximeter Mark 2 and Mark 4 model approved in California for testing preserved breath. This instrument is specific for ethanol. In other words, it takes alcohol and measures only the alcohol content in the blood, and--
Byron R. White: How accurate is that machine, though, otherwise?
John F. De Meo: --Very accurate.
Byron R. White: How do you know?
John F. De Meo: Our experts say it is the most accurate machine there is for the testing of breath, and even it has some deficiencies, but it is the most accurate one. It is a different principle, the gas chromatograph.
Byron R. White: And so if it happened to test and it was inaccurate, as you say it can be, where would you be?
John F. De Meo: Well, then we would be--
Byron R. White: In a battle of experts.
John F. De Meo: --in a battle of experts and also--
Byron R. White: And also of--
John F. De Meo: --demeanor.
Byron R. White: --of the jury or whoever is trying the case weighing the evidence.
John F. De Meo: Yes, and the officer's testimony as to what the demeanor of the defendant was.
Byron R. White: Of course, the officer examining, if he ever smells the fellow's breath, can hardly save the sample, and yet that evidence is freely admissible.
John F. De Meo: Yes, it is, Your Honor.
Byron R. White: Did he smell? Yes, he smelled. How do you know he smelled? Well, I just smelled him.
John F. De Meo: Yes.
Byron R. White: But I am awfully sorry I didn't save the sample.
John F. De Meo: Um-hm.
John Paul Stevens: May I ask another question about the machine?
John F. De Meo: Yes.
John Paul Stevens: Does the... I am not quite clear. Even though the sample itself was not saved, does the machine record in some way what the results of the test were?
John F. De Meo: Yes, Your Honor. The Intoxolizer prints out on a card.
John Paul Stevens: So we don't really have an issue that maybe the officer made a mistake, or contrived testimony. That problem isn't present here at all.
John F. De Meo: No, not unless the card was put in someone else's file by error or mislabeled or misnumbered, which is always possible certainly.
John Paul Stevens: So you do not challenge the fact that there is an accurate... normally, at least, in the normal routine, there would be an accurate record made of what this device actually showed at the time the test was made?
John F. De Meo: Yes, it would normally print that out on a card. That is the only thing that we have to cross examine besides the machine and the expert who comes in and testifies as to the result.
Warren E. Burger: Is that fundamentally any different from an electrocardiogram after it comes out of the machine?
John F. De Meo: Probably not.
Warren E. Burger: You can't go back and capture the heartbeat.
John F. De Meo: Yes, except there--
Warren E. Burger: You have a paper recording of it.
John F. De Meo: --Yes, one is--
Warren E. Burger: The question is, is this fundamentally different from the cardiogram recording?
John F. De Meo: --Only scientifically, Your Honor. The one machine is an infrared type instrument, and the electrocardiogram, as I understand it, works on a different principle, but there is a printout that would be the same principle.
Sandra Day O'Connor: Mr. DeMeo, you are relying primarily on the Brady case and the Agers case as the source of this right that you assert for your client?
John F. De Meo: And the California decisions, Your Honor.
Sandra Day O'Connor: All right, but they presumably are relying in turn on these federal cases as I understand it.
John F. De Meo: They seem to be.
Sandra Day O'Connor: And isn't it primarily the non-disclosure of evidence known only to the prosecutor that Brady and Agers say makes the trial unfair? Isn't that the focus really of those cases and what is behind them?
John F. De Meo: It is, because there was something found to be in existence later--
Sandra Day O'Connor: It is the non-disclosure of something known only to the prosecutor. Now, here you have something that is known as much to the defense, the defendant, as to the prosecutor and the officers. You don't have a problem of non-disclosure of evidence known only to the prosecutor.
John F. De Meo: --How would that be different, Your Honor? Just to paraphrase that, how would that non-disclosure be different than just not having the evidence when you have the availability of it? You embarked on the process of collecting it, and you discarded it when it could be retained and could be useful to a defendant if it showed in fact through this other more precise machine that it was indeed a false positive. Perhaps there was some exposure to this individual who--
Sandra Day O'Connor: I suppose our cases haven't... or the cases of this Court haven't gone so far as to say the constitution is violated if in some unforeseen fashion evidence might be lost.
John F. De Meo: --True. I think that the cases only require an earnest effort to preserve, and it is conceded in the cases below and in this record that--
Sandra Day O'Connor: Well, I don't think they even well, go ahead.
John F. De Meo: --Excuse me. That there was no effort at all here to preserve even though--
William H. Rehnquist: What case from this Court requires an earnest effort to preserve?
John F. De Meo: --I believe Augenblick found an earnest effort to preserve tapes that were lost, and since there was proof by, I believe, eight witnesses who testified that they lost the tape of this interview by an investigator of a participant in a crime, that the government showed that they had made an earnest effort to preserve, and therefore the evidence--
William H. Rehnquist: But Augenblick was a ruling for the government, and the fact that it may say in this case there was an earnest effort to preserve doesn't mean that the Constitution would have been violated had there been no earnest effort to preserve.
John F. De Meo: --Well, it just seems to me, Your Honor, that when the very evidence itself is directly determinative of whether or not a person is guilty, namely, this test, and how high it was, because it gives rise to a presumption of guilt if it is over.10 percent in California, that it is a small price to pay in terms of constitutional requirements to allow that defendant the same benefit, the same artillery that the government has to determine whether or not that test is or is not valid that the government took, and it just... the principle is hard to articulate, because I think it is fundamental. I believe that when you take the bodily substance of an individual to use against him, that he at least ought to have the opportunity to check to determine if that testing done by the government was or was not accurate.
Thurgood Marshall: Well, he had that opportunity. He had that opportunity from the day he was arrested until the day he was convicted.
John F. De Meo: Well, Your Honor--
Thurgood Marshall: Am I right?
John F. De Meo: --No, Your Honor. I am sorry. Let me explain why.
Thurgood Marshall: Well, who had the breath? The government or your client? Who had the breath?
John F. De Meo: Well, at what point?
Thurgood Marshall: Who had the breath?
John F. De Meo: They both had it at one point, Your Honor.
Thurgood Marshall: All right.
John F. De Meo: Once in the machine and once in the body.
Thurgood Marshall: And then at the bitter end who had it? Your client.
John F. De Meo: Well, he still had his breath certainly.
Thurgood Marshall: He still had breath.
John F. De Meo: Surely.
Thurgood Marshall: All right.
John F. De Meo: But let me explain, Your Honor, that if that test were taken on the day of the trial or a week later or five hours later, it would have no relevance or materiality because of the blood alcohol--
Byron R. White: You wish it would.
John F. De Meo: --being metabolized. Yes, Your Honor.
Byron R. White: You wish it would.
John F. De Meo: Yes. It is being metabolized through the body, through the liver, the breathing, and the urine, and it is gone, and it is of no relevance after that point.
Thurgood Marshall: But it wasn't the government's fault that he breathed.
John F. De Meo: How would he have preserved his breath in jail?
Thurgood Marshall: Good question.
John F. De Meo: How?
Thurgood Marshall: Good question. The same way you want the government to. You are asking them to preserve it. You are asking the government to preserve it.
John F. De Meo: Because they have the means to do it.
Thurgood Marshall: Well, the means was available to him.
John F. De Meo: Well, Your Honor, he wouldn't be allowed to borrow the government's machine.
Thurgood Marshall: No, but he could buy it.
John F. De Meo: Well--
John Paul Stevens: Maybe he ought to carry a balloon with him.
John F. De Meo: --Pardon?
John Paul Stevens: Maybe he should carry a balloon with him. 0 [Generallaughter.]
John F. De Meo: I would like to comment briefly on what California has done in response to this case. Section 13.353.5 of the Vehicle Code was adopted in response to Trombetta, and the language of the legislature, "in order to provide a constitutional procedure for administering the breath test in light of the decision of the Court of Appeal in People v. Trombetta, it is necessary that this Act take effect immediately. " And what this Act does, when a person chooses the breath test over the blood or the urine test, law enforcement must tell him now, which was one of our points below, tell him now that there will be no breath preserved by this particular instrument that is being utilized, but that government will provide him free of cost a sample of his blood or his urine which he may subsequently have available to him to be tested by a referee or a criminalist or a toxicologist of his own choosing. So that raises the question as to whether or not there is anything left for the Court to determine. In other words, would this be just a case of isolated... case that would only be isolated to the--
John Paul Stevens: Mr. DeMeo, that statute raised the question in my mind as to what... if that satisfied the holding in the Trombetta case, there is no obligation to preserve the sample.
John F. De Meo: --Well, there is.
John Paul Stevens: It is just an obligation to give notice. That is what--
John F. De Meo: Yes, that's correct. They could make a knowledgeable waiver or take the test, another test, so that--
John Paul Stevens: --Right, but if the California legislature correctly understood Trombetta, all that case holds is that you've got to give notice. That is why I asked your opponent earlier whether we really had a federal issue here.
John F. De Meo: --Yes.
John Paul Stevens: And they say... the California legislature apparently thought that solved the whole problem, didn't they?
John F. De Meo: They did believe that, Your Honor. They said either we will give you the equivalent or you can waive it, one of the two. At least you are put on notice of that effect. Thank you very much.
Warren E. Burger: Very well. Do you have anything further, counsel?
Charles R.B. Kirk: No, Your Honor, I don't, unless the Court has any further questions.
Warren E. Burger: No, counsel, we do not. Thank you, gentlemen. The case is submitted.