Failure to Preserve Blood Test For Independent Testing

State v. Velasco, 165 Ariz. 480, 799 P.2d 821 (1990).

• In State v. Velasco, 165 Ariz. 480, 488–89, 799 P.2d 821, 829–30 (1990), the court held that the United States Supreme Court’s holding in Youngblood did not change the government’s duty to preserve biological evidence it has seized in a DUI case. The court in Velasco states:
• The state points out that subsequent to our decisions in Scalesand Baca, the United States Supreme Court held that the due process clause of the fourteenth amendment does not require the state and its agencies to preserve breath samples of DUI defendants for independent testing. See California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Thus, the state argues, much of the underlying rationale of Scalesand Baca and many of the authorities cited or relied on by those cases are no longer viable. This is even more apparent, the state contends, in view of the United States Supreme Court’s recent decision in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), holding that due process requires the prosecution to collect, preserve, and present to the defendant only evidence that has actual and apparent exculpatory value, not evidence that is only potentially exculpatory. Id. at 56 n., 109 S.Ct. at 336 n.
• We believe Youngblood is inapposite. That case dealt with the destruction of clothing containing semen stains, and as the Court noted, “unlike in Trombetta, the state did not attempt to make any use of the materials in its own case in chief.” Id., 488 U.S. at 56, 109 S.Ct. at 336.  In the case before us, like Trombetta but unlike Youngblood, the state did use “the materials”—the defendant’s breath and its test results—in its case in chief.  Blood alcohol test results in a § 28–692(B) prosecution are not merely “potentially useful” evidence, they are virtually the entire evidence. A person may not be convicted of a violation of subsection (B) without evidence of chemical analysis of blood, breath, or urine showing a BAC in the proscribed range. State v. Superior Court, 149 Ariz. at 279, 718 P.2d at 181 (1986).
• Nor do we believe our cases are necessarily in conflict with Trombetta. Trombetta concluded that due process was not violated by the state’s failure to capture and preserve the breath discharged from the Intoxilyzer in the context of the procedure used in California DUI cases.6 We recently held that a similar methodology in Arizona satisfies due process. See State ex rel. Dean v. City Court, 163 Ariz. 510, 789 P.2d 180 (1990) (due process was not violated where defendant was given choice between replicate breath test with no sample saved and blood test at state expense); see also Oshrin, 142 Ariz. at 113, 688 P.2d at 1005. State v. Velasco, 165 Ariz. 480, 489, 799 P.2d 821, 830 (1990).

What Is the Remedy?

There are some cases where the destruction of evidence merely justifies an adverse jury instruction.  However, the Arizona Supreme Court has held that a Willits instruction does not adequately protects a Defendant’s rights when he is prejudiced by that loss of evidence or the Defendant can prove the State acted in bad faith.  State v. Schad, 163 Ariz. 411, 416 (1989).  As noted in State v. Rivera, 152 Ariz. 507, 511 (1987):

• In incidences where the evidence is no longer available because the state has destroyed the evidence or failed to preserve the evidence the defendant’s due process rights may nonetheless be protected by giving a Willits instruction to the jury.  However, if the state had destroyed evidence and the prejudice caused to the defendant is greater the state acted in bad faith or with connivance the charges against the defendant must be dropped or his conviction reversed; a Willits instruction is insufficient to cure the violation of a defendant’s due process right. (emphasis added) State v. Rivera, 152 Ariz. 507, 511 (1987).

The “bad faith” required for dismissal does not require that the State acted with intent to destroy evidence favorable to the Defendant; rather, within the meaning of the law “bad faith” is a “conscious intentional or malicious failure to preserve evidence.” State v. Youngblood, 173 Ariz. 502, 506 (1993). 

To illustrate, in State v. Hannah (Real Party in Interest Farhang), 120 Ariz. 1, 2 (1978) arson charges against the Defendant were dismissed by the trial court because the State destroyed evidence without testing it for possible exculpatory proof, and the court found that a Willitsinstruction would not otherwise cure the due process violation.  State v. Hannah (Real Party in Interest Farhang), 120 Ariz. 1, 2 (1978).  The order to dismiss was found to be an appropriate remedy on appeal even though the defense in that case had not made a request for production of the evidence until shortly before trial. 

Moreover, in State v. Lopez, 156 Ariz. 573, 574 (1988) the court ruled that dismissal was proper when there is a reasonable possibility that the requested evidence would be favorable and material to the defense. Lopez, 156 Ariz. 573, 574 (1988). The Lopez court cited Brady v. Maryland in finding that “due process requires the state to produce any information that is material to the issue of defendant’s guilt.”  Lopez, 156 Ariz. at 574. 

In Arizona DUI cases the remedy for the government’s failure to preserve a blood sample is well established.  In Amos v. Bowen, 143 Ariz. 324, 328, 693 P.2d 979, 983 (App. 1984), the Court of Appeals held an “unreasonable or unconstitutional interference” with attempts to secure a blood sample for exculpatory purposes in a DWI prosecution “requires a stay or dismissal of the charge as a remedy.” Amos v. Bowen, 143 Ariz. 324, 328, 693 P.2d 979, 983 (App. 1984). 

Due Process requires a “fair chance” to obtain independent evidence of sobriety. See Smith v. Ganske, 114 Ariz. 515, 517, 562 P.2d 395, 397 (App. 1977).