Why Do Police Destroy the Evidence in DUI Cases?
Information courtesy of Lawrence Taylor - DUIblog
As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations.
What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test. In fact, its the ONLY evidence of the crime of driving with over .08% blood alcohol. And its pretty important for the "driving under the influence" charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesnt get more important than that.
So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officers word that the test results were from the defendants test.
Unfortunately, the breath sample is routinely destroyed moments after it is tested.
But how can this be? Thats a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and 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 defendants 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.