San Diego DUI attorney saw this on the Internet:

Objective-I am seeking a position with good-natured and essentially functional alcoholic. I would prefer a position of equals, but will accept sidekick role. Gender of buddy does not matter, but if female, buddy must accept half the responsibility for any unfortunate and nil-planned hook-ups. Occasional morning drinker a must.

Experience

January 2000-June 2001
Drinking Buddy
Ron Hibshoosh Trust Company
Chicago, Illinois
Duties included lamenting about women; whiskey-cokes; commiserating on state of folk music; discussing the books of Genesis and Job; suicide humor; Leonard Cohen; Jack and cokes; vomiting; smoking; light typing (college papers); white russians; and Tom Waits.

January 1999-June 2001
Drinking Buddy
The Adrianne Lona Fund
Chicago, Illinois
Duties included Pixies; drunk-driving; booze in any available form; depression; Silver Jews; and cooperative self-destruction.

April 2000-October 2000
Drinking Buddy/Baseball Guy
The Mark Paulik Foundation
Chicago, Illinois
Duties included Jason Kendall admiration; beer; fantasy baseball jargon including OPS and K/BB; whiskey on rocks; and light fistfighting.

December 1999-January 2000
Whipping Boy
Nicholas Gilewicz and Jeremy Lawrence Associated
Chicago, Illinois
Duties included quarrelsome chess; arguing T.S. Eliot's The Waste Land; boilermakers; dancing to Talking Heads, the Who, and Neil Young; 7&7's; abortive emotional connections with each other and outsiders; beer; and Bob Dylan.

October 1997-December 1998
Apprentice Alcoholic/Sidekick
Martin Golando Corporation
Chicago, Illinois
Duties included vodka; salting wounds; classical languages; condescension; beer; debating poetry; essential understanding of the meaning of art; kicking a man when he's down; and trying to become my father.

December 1997-September 1998
Social and Emotional Crutch
Sarah Mason Limited
Chicago, Illinois
Duties included listening to Pavement; sarcasm; Smirnoff straight, wince chaser; Sonic Youth; living in the past; storytelling; and envy.

October 1995-August 1997
Drinking Buddy
Rusty Sticha Emporium
Bainville, Montana
Duties included self-loathing; fearing the inevitable; Old Milwaukee; Keystone Light; drunk-driving; and a rudimentary understanding of Marx.


Education

DAD in Youth 1979-Present
Life Lesson--
"Son, life is a tough business sometimes. I'd quit now if I were you."

BA in Literature 2001
University of Chicago
Senior Project--
"Romanticizing Alcoholism: Living Out a Myth of Poetic Souls and Booze"

AA in Dreams 2000
38 Geary Hangover chapter
Essay--
"Correctly Analyzing Just How Easy Those Twelve Steps Are: I CAN Quit Anytime"

Diploma in 1997
Bainville High School
Senior Thesis--
"Life is Boring and Tedious after High School: The Making of An American Drunk"


Skills

Thinking self into a rut, dead languages, storytelling, quoting literature, telling you what's wrong with you, going to movies and shows while intoxicated, pipedreaming, telling you what's wrong with me, obsessing, not doing anything about it, doing and saying outrageous things to strangers, anger, getting out of there in the morning, buying a round, and sorrow.

Out to fix one of the oddities of Arizona law, Senator Jim Waring has developed something of a reputation for injecting common sense into Arizona's DUI laws.

He's the guy who saw last year's "Expect the max" signs on freeway billboards and wondered when, exactly, we were supposed to expect it. He's the guy who spearheaded a successful drive last spring to require a driver convicted of extreme DUI to actually serve the sentence set in law. He's the guy who now wonders what the heck is with the state's "administrative per se" law.

If you drive drunk, you can lose your driver's license. But if you drive drunk and kill someone, your right to get behind the wheel and careen down the streets remains intact.

The quirk in the law came to light earlier this year, after a Phoenix grandmother died after being hit by a driver who was toasted more than four times over.

It was just before noon on Feb. 16 and Phyllis Martin had just picked up her 4-year-old grandson from preschool. She was headed north on 43rd Avenue toward Thunderbird when a southbound pickup crossed the center line and hit her head on.

Lori Ann Gilbert, 36, told police she'd had two beers. Blood tests put her alcohol level at 0.328 percent.

Police didn't take her driver's license that day, despite a law that allows them to begin proceedings to suspend the driving privileges of suspected drunken drivers.

Four months later, Gilbert was still legally licensed to drive. Marana police spotted her just before midnight on June 27, driving up onto a sidewalk then drifting across several lanes and onto the center median. A breath test put her at 0.243 percent.

They didn't take her license either, deciding to wait on blood test results. In August, they were still waiting.

Finally, after the story hit public view, a judge seized her license.

Waring, meanwhile, was astonished that Gilbert was still licensed to drive, seven months after police found her with a dead grandmother at her feet and a 0.328 percent alcohol level in her blood.

Arizona law allows police to seize a suspected drunken driver's license and notify the state Motor Vehicle Division so that it can administratively suspend said license. But the so-called "administrative per se" law applies only when a person is arrested for DUI. Police don't pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.

Thus, you can drive drunk in Arizona and lose your license. But you can drive drunk and kill someone and keep on driving right up until the time when you go to prison.

For now. Waring has a bill aimed at closing that loophole when the Legislature convenes Jan. 14.

"You shouldn't have people out driving around who have just committed such an incident," he said. "We want to make sure that at least if they're going to do it again they're not going to be doing it with a valid driver's license."

Senate Bill 1008 would allow police to take the license of those suspected of driving drunk and killing or maiming someone. In addition, the suspension would be immediate, eliminating the current 15-day lag in the law, there to allow the driver time to take his case to an administrative judge. (The driver still could appeal to a judge under Waring's bill, he just wouldn't be driving again until a judge OK'd it.)

Waring predicts smooth sailing for his bill. I'm not so sure, given the prospect of on-the-spot suspensions without first going before a judge.

"We've had big fights with lobbyists about these kinds of bills in the past but I wouldn't think this would be a target-rich environment for them," he said. "What are you really going to say. We want these people to drive?"

A judge ruled today that breath-test results obtained as part of a drunken-driving prosecution of King County Councilwoman Jane Hague will not be admissible in court.

The ruling may make it harder for prosecutors to win a conviction against Hague, who was arrested on suspicion of drunken driving after she was stopped June 2 on Highway 520.

King County District Court Judge Peter Nault agreed with defense arguments that Hague was not properly warned of the implications of consenting to such a test.

Lynn Moberly, special prosecutor in the case, said Nault's decision was "very disappointing," but added that it is possible to win a DUI case without using breath-test results.

"It makes it more difficult," she said, although other materials, such as officer statements and physical evidence, still can be used at trial.

Nault also approved a tentative schedule in the case that calls for hearing further motions Jan. 14, the beginning of jury selection Jan. 31, and a trial from Feb. 5 to Feb. 8.

Hague was charged with DUI July 16. She pleaded not guilty July 30.

AUSTIN, Texas: Authorities in the United States are seeking the extradition of a Peru resident accused of being drunk when she caused a fatal car wreck 11 years ago while studying at the University of Texas.

Evelyn Mezzich, 29, who now lives in Lima, Peru, faces a charge of intoxication manslaughter stemming from the November 1996 death of her then-roommate Lindsay Brashier.

Mezzich, who posted a US $10,000 bail, disappeared about a year into her court proceedings, authorities said.

"This is not about revenge," said Brashier's mother, Marilyn Datz of Houston, who has campaigned to bring attention to the case.

"Her life just needs to be interrupted," Datz said. "She needs a wake-up call."

Today in Americas
In Iowa, evangelicals give Huckabee a boostEfforts increase to enfranchise U.S. citizens abroadChavez says Venezuela will have no relationship with Colombian presidentThe FBI notified Texas prosecutors in 2001 that Mezzich was in Peru, but extradition efforts stalled because a treaty between the U.S. and Peru did not cover the crime she was accused of.

But the extradition rules were expanded after the Sept. 11, 2001, terrorist attacks.

Mezzich was born in Canada and has citizenship in Peru, the country of her parents' birth, prosecutors said.

According to an arrest warrant affidavit, Mezzich was driving on Nov. 10, 1996, when she crashed into a pole. Brashier, Mezzich's roommate, was pronounced dead at the scene. Another roommate, Tatiana Sartori of Brazil, was paralyzed.

Travis County Assistant District Attorney Claire Dawson-Brown said an evidence packet will be sent by the end of the year to the U.S. Justice Department, which will then work with Peruvian authorities to have Mezzich arrested.

After the field sobriety test and the ride to the police station, comes the make-or-break moment for the thousands of Connecticut motorists arrested each year on suspicion of drunken driving: blowing into the Intoxilyzer 5000.

A reading from the state's breath-testing device is the chief weapon for police officers in proving that someone was driving under the influence.

But in a daylong hearing Tuesday at the Department of Motor Vehicles in Wethersfield, three defense lawyers argued that the device is fundamentally imperfect in measuring blood-alcohol content and can even be biased against women, small men and people with respiratory conditions such as emphysema and asthma.


The state's chief toxicologist defended the accuracy of the test in testimony Tuesday.



But a University of Washington expert said physiological factors can cause readings to vary widely for a single person — for example, a higher percentage of alcohol for suspects who hold their breath before exhaling and a lower one for suspects who have hyperventilated.

First offenders who refuse to submit to a chemical test face an automatic six-month license suspension under state law.

If the lawyers ultimately convince a Superior Court judge that the Intoxilyzer 5000 is inaccurate — a charge state officials and DMV attorneys reject — the ruling could affect DUI cases pending across the state. It also could force Connecticut police departments to take blood or urine samples from suspected drunken drivers, a significant change in policy and everyday practice.

"The state will have to throw out 169 $5,000 machines," said defense lawyer Jay Ruane of Ruane Attorneys at Law, a Connecticut firm that focuses on DUI cases and takes on about 500 new ones a year.

Ruane considers blood samples to be "the gold standard" in intoxication testing: "Because if you want to know what's in somebody's blood, why would you test their breath when you can test their blood?" he asked.

Judge George Levine ordered the DMV hearing a year ago in Superior Court in New Britain while presiding over an administrative appeal of two men who had their driver's licenses suspended after failing Intoxilyzer 5000 tests. The two men, represented by the Ruane law firm, challenged the legitimacy of the machine, which the state certified for law enforcement use in 2001.

Levine said he wanted more evidence and sent the case — now involving four plaintiffs — back to the DMV and DUI attorneys to argue six points before a hearing officer. Among the major issues Levine seeks to determine are what the machine measures, how it does that and whether the method falls within state law and public safety regulations.

On Tuesday, the state's chief toxicologist, Dr. Robert Powers, testified that not only is the breath test a fair and widely accepted way of determining blood-alcohol concentration — 0.08 percent or higher is illegal in Connecticut — but that the Intoxilyzer 5000's readings are "probably an underestimate" of someone's true alcohol level.

The machine measures the amount of ethyl alcohol in a person's air sample, which is believed to be equivalent to the amount of alcohol in the person's blood if both were tested at the same time, said Powers, who served as the DMV's expert witness.

But Dr. Michael Hlastala, a professor and researcher in the School of Medicine at the University of Washington in Seattle, disputed that equivalency, calling it an "old paradigm" of thought held by the nation's forensic toxicologists.

Hlastala argued that the alcohol recorded in a breath test does not come from a deep part of the lungs, as Powers testified, but from the surface tissue of a person's airway. Hlastala depicted breath-alcohol testing as inherently flawed after citing research stating that the level of alcohol rises as a person exhales and continues to exhale.

"If you have alcohol in your system and you breathe in different ways, either before the test or when you breathe in for the test, you'll change the alcohol reading," Hlastala said. "For example, hyperventilation. That'll reduce the amount of alcohol," because breathing rapidly "flushes away" the alcohol that was stuck on the airway's surface, he said.

Holding one's breath will elevate the alcohol reading, he contended, because the alcohol is being charged before the breath is released.

Hlastala also argued that a people who have a smaller lung volume — such as women or people with asthma and chronic bronchitis — will yield higher blood-alcohol readings because they need to exhale a greater fraction of available breath for the machine to register a reading.

The hearing is expected to wrap up this morning. After compiling all the evidence, Hearing Officer William D. Grady will have 90 days to make his recommendations to Levine.

The judge will then decide on the license suspensions and, ultimately, the Intoxilyzer 5000's validity.

San Diego DUI criminal defense lawyers & sports fans news:

Future Hall of Fame Major League Basetball Cardinals manager Tony La Russa pleaded guilty to a DUI / drunk driving charge in Florida on Wednesday, essentially resolving a case that began in March when he was arrested during Spring Training.

According to multiple reports, La Russa will serve six months probation and perform 50 hours of community service, pay a fine and attend a DUI / DWI school. He was arrested March 22 in Jupiter, Fla., the Cardinals' Spring Training home, when he was found asleep at the wheel of his sport-utility vehicle.

"We addressed this matter with Tony last season and the nature of those discussions will remain private," said Cardinals principal owner Bill DeWitt Jr. in a statement issued by the team. "We have been satisfied with Tony's responsible approach to this issue and we respect his decision. With today's news, our ball club considers the matter closed."

The Associated Press and the St. Louis Post-Dispatch reported that La Russa's DUI criminal defense attorney, David Roth, issued a statement on behalf of the manager:

"I accept full responsibility for my conduct, and assure everyone that I have learned a very valuable lesson and that this will never occur again."

In a DUI / DWI drunk driving case against an off-duty Chicago cop accused of pointing a gun at a motorist in a road-rage incident, there's a battle.

Officer Kevin Carey was arrested in May and charged with aggravated assault and DUI - driving under the influence, misdemeanors.

Carey, 28, refused to take a Breathalyzer in the criminal case, but took one for the department's internal investigation. He was stripped of his police powers and faces firing.

Now prosecutors are fighting to use the Breathalyzer as evidence in the DUI case. Carey's blood-alcohol level was .145, nearly twice the .08 legal limit, records show.

Prosecutors argued the Fourth Amendment's search-and-seizure protections don't bar them from using the Breathalyzer results. There was probable cause to arrest Carey, so his consent isn't needed, prosecutors say.

The Fraternal Order of Police is defending Carey, arguing in court papers that he was "deceived into agreeing to submit to the tests believing the tests would not be used in his criminal prosecution."

On Nov. 15, Traffic Court Judge Steve Goebel ruled in Carey's favor, throwing out the Breathalyzer results as evidence. But the fight is not over.

"We're planning an appeal," said John Gorman, a spokesman for the state's attorney's office.

Early on May 5, Willie Flood, a coffee server at a hotel near O'Hare Airport, was heading to work on Western near 72nd. He told police he cut off Carey, who then started tailgating Flood's Mercedes SUV.

Flood said he sped north, trying to lose Carey, who allegedly pointed a gun at Flood on the Kennedy Expy. near Division. Flood had called 911 and was on the phone with the State Police when he pleaded, "Before he starts shooting, somebody help me!" records show.

The State Police urged Flood to go to a Northwest Side police station, but he stopped miles away near the 2600 block of North Kedzie when he spotted officers. Flood jumped out and yelled, "There's a man chasing me and he's got a gun!" police reports say.

The officers said they saw Carey pointing a handgun at Flood.

Carey obeyed a sergeant's command to drop his weapon and identified himself as an officer. Carey smelled of alcohol, his speech was slurred and his eyes were bloodshot, the officers said in police reports.

Both men were taken to the Humboldt Park District police station, where Carey was arrested. Flood declined comment. Carey's DUI defense lawyer has not yet given a statement.

A tough DUI judge sentences a Summit County man to six years in prison for his 13th DUI / DWI / drunk driving conviction.

Terry Cradlebaugh, 51, was most recently arrested in July and pleaded guilty to DUI.

His attorney argued that his client knows that he is wrong and the reason that he fled from police in his latest arrest was that he wanted to be with his mother who's dying from cancer.

The prosecution reminded the judge that Cradlebaugh didn't just run from police.

"Your honor, he also fled from this court. This court ordered the sentencing when Mr. Cradlebaugh was present and he failed to appear for that sentencing. He didn't turn himself in. He was captured by the fugitive task force and even at that time, he was found hiding under a pile of clothes in a closet," said Summit County Assistant Prosecutor Greta Johnson.

Judge Marvin Shapiro said that Cradlebaugh is lucky that he had never killed anyone while driving drunk.

A man convicted of DUI / DWI / drunk driving for the fourth time since he caused a 1981 crash that killed four people was sentenced Wednesday to from 1 1/3 to four years in state prison.

Robert Madison told Onondaga County Judge Joseph Fahey that he had found God in recovery and wanted one more chance, but Fahey ignored his plea and imposed the maximum sentence that he could.

"Forewarned is forearmed. If you get convicted of drunk driving again, I'm going to send you to prison for the rest of your life," said Fahey, who disregarded a county probation department report that recommended a six-month sentence at a shock camp.

Madison, 46, of Onondaga, was pulled over for driving without his headlights on at 1 a.m. on April 9. A jury found him guilty of driving with a blood alcohol level of 0.13 percent, above the legal limit of 0.08 percent. He admitted to police he had 10 to 12 beers.

Madison has a misdemeanor DWI conviction from 1985 and felony DWI convictions from 1992 and 1997.

In 1981, Madison _ then 19 _ caused a head-on crash when he drove across the center line on a two-lane state highway and hit an oncoming car. Killed in the accident were John McLaughlin, 62, of DeWitt; Martha McMahon, 55, of Syracuse; and Demetrio Ascioti, 65, and his wife, Evelyn Ascioti, 49, both of Onondaga.

Even though he had been out drinking, Madison was not charged with DWI. The crash was blamed on narcolepsy, a sleep disorder.

"Clearly, alcohol was a factor in the accident," Fahey said. "I don't see the change. I see a consistency that already had lethal consequences."

Madison pleaded guilty to criminally negligent homicide charges in the fatal crash and was sentenced to probation.

Madison tried to read his mercy plea in court, but was quickly overwhelmed by emotion and had to hand it off to his DUI / DWI / Drunk Driving criminal defense attorney, James Chatwin, to finish. In his statement, Madison said the tragedy caused his drinking problems but he is now in recovery and a "dramatically changed man."

Chatwin also asked Fahey for leniency, noting that Madison had gone nearly 10 years since his last DWI conviction.

NEWS for SAN DIEGO DUI defense attorneys

Washoe County establishes DUI court

A new program being established in Washoe County will provide third-time DUI offenders a chance to participate in an intense, court-supervised treatment program instead of going to prison.

DWI / DUI defense attorney news

Tacoma, Washington

November 27, 2007


DUI Deputy facing legal trouble after double DUI

A Pierce County Sheriff’s Deputy has been suspended from duty after being arrested twice within two hours Saturday on DWI / DUI / drunk driving charges. In both cases, his blood-alcohol level was reported to be more than twice the legal limit. Robert Glen Carpenter, 37, pleaded not guilty in Chelan County District Court Monday.
Pierce Sheriff Paul Pastor said Tuesday he was launching an internal investigation into the South Hill patrol officer’s conduct.

"We will conduct a thorough investigation and the results will be made public," he said. “I expect our people to be fully subject to the law, as are all citizens. We have a long history of holding our people accountable.”

A current phone listing for Carpenter was not available. He has been with the department since 1993 and has a clean record, department officials said.

According to Washington State Patrol reports, Carpenter was pulled over by state troopers on Highway 2 in Chelan County at 12:30 a.m. after being clocked going 95 mph past troopers conducting another traffic stop.

Outside his truck, Carpenter had a hard time maintaining his balance and smelled strongly of alcohol, trooper Albert Arrey wrote in his report. A tall can of Foster’s beer was found on the floor inside the truck, about 80 percent full.

At 1:54 a.m., the 200-pound deputy’s blood-alcohol level was .21, records show. It is illegal to drive with a level of .08 or higher.

Carpenter also had his loaded .40-caliber Glock service pistol in a holster under his coat.

While Pierce Sheriff’s officials said it is legal to carry a firearm in Washington while drunk, Pastor said, “We do not require our people to carry weapons while off duty. I do not believe anyone should carry a weapon while intoxicated.”

Carpenter was released into the custody of his girlfriend, who came to pick up Carpenter’s truck and dog, according to the report.

State Patrol Lt. Mike Warren said troopers have discretion on DUI arrests whether or not to book a suspect into jail or release them if someone can pick them up.

“He was not given any favors,” Warren said.

Reports don’t say exactly how long after his 2 a.m. breath test Carpenter was released, but he was stopped again by a Chelan County deputy at 2:44 a.m. for speeding.

State Patrol Sgt. Art Nelson responded to the scene, and in his report, said, “Based on my training and experience and with the knowledge that less than one hour before the stop Carpenter’s breath alcohol concentration was above .20 grams per 210 Liters of breath it would be impossible for it to have declined appreciably prior to his being stopped...”

Carpenter was booked into the Chelan County jail and his truck was towed.

Instead of answering Nelson’s questions about whether Carpenter understood his rights, he just nodded his head. “It was clearly obvious Carpenter was exercising his constitutional right to remain silent,” Nelson wrote.

A new breath sample taken at 4:22 a.m. allegedly showed a reading of .168.

After the test, Carpenter said he was embarrassed and thanked Nelson for his professionalism, the report purports.

DUI criminal defense lawyers & drunk driving defense attorneys news

Legal challenge to DUI breath-test machine
Legal challenge to DUI breath-test machine - by Kent Pierce





Intoxilyzer 5000


Intoxilyzer 5000 EN - Manufacturer's web site



One method of busting drunk drivers in the state comes under fire today. Some Connecticut attorneys are calling on the DMV to take a closer look at the test and law in place when it comes to cracking down on those driving under the influence.

It seems simple enough -- You get pulled over, you blow into a tube and a machine figures out your blood alcohol level. It's a machine they've been using for years. Today's hearing is all about whether the device the police use to determine if a driver is drunk actually does that in the way the state drunk driving laws are written.

"The expectation of the Commissioner was that the Intoxilyzer 5000 produced results at time of use, basically that are consistent with the statutory requirements of the state of Connecticut," state toxicologist Dr. Robert Powers said.

The state says the machine is fine, but lawyers representing drivers who got their licenses suspended for drunk driving argue the machine is not certified to measure the right thing.

"Certification does not mean that the machine is certified to produce a measurement meeting the statutory definition of elevated blood alcohol. The Intoxilyzer reports in a weight-volume measurement," defense attorney Gene Riccio said.

"Very basically, the breathalyzer - really called the "Intoxilyzer 5000 EN" - measures alcohol in your breath, but the law calls for a measure of alcohol in your blood, so the machine has to convert the measurement," Riccio said.

"This is not new science. These devices are in use all over the country," said John Yacavone, legal counsel for the Department of Motor Vehicles. "There are a number of routines that the device performs to make what we call the conversion."

Yacavone says if anything in that conversion, the Intoxilyzer 5000 underestimates blood alcohol level, giving the benefit to the driver.

The attorney for those drivers say they have evidence that the conversion actually can make people seem drunker than they really are.

Five people were killed and 128 arrested for San Diego DUI on San Diego County roadways during the Thanksgiving holiday, according to the latest figures released by the California Highway Patrol.

In San Diego County, five people died on the road during this year's Thanksgiving holiday, compared to one in 2006, said California Highway Patrol. There were 34 fatalities statewide this year, compared to 37 in 2006.

Also on county roads, 128 people were arrested by CHP officers on suspicion of San Diego DUI - driving under the influence -- 14 less than over the same period last year.

Statewide, 1,497 people were arrested on suspicion of San Diego DUI - driving under the influence, compared to 1542 San Diego DUI in 2006.

San Diego Criminal Defense Attorneys news

Filed 11/26/07



IN THE SUPREME COURT OF CALIFORNIA



TARIQ CHAMBERS, )
)
Petitioner, )
) S143491
v. )
APPELLATE DIVISION OF THE )
SUPERIOR COURT OF SAN DIEGO )
COUNTY, ) Ct.App. 4/1 D047661
)
) San Diego County
Respondent. ) Super. Ct. No. GIC856399
)
SAN DIEGO POLICE DEPARTMENT )
)
Real party in Interest. )
)

Here we consider whether derivative information, developed by independent investigation after Pitchess disclosure in an earlier case, is subject to a protective order under Evidence Code section 1045, subdivision (e) (section 1045(e)). We hold that derivative information is not generally subject to the statutorily required protective order when a subsequent defendant files his or her own Pitchess motion and receives the name of the same complainant to which the derivative information pertains. We therefore affirm the Court of Appeal’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Tariq Chambers was charged with one count of resisting, delaying, or obstructing a peace officer. (Pen. Code, § 148, subd. (a)(1).) According to the police report, on July 29, 2004, Officer E. and his partner responded to a report of domestic violence at Chambers’s residence. Chambers became belligerent and rushed toward Officer E. three times. Officer E. used pepper spray to protect himself.
In January 2005, Chambers filed a Pitchess motion, seeking information in Officer E.’s personnel file regarding “excessive force, aggressive conduct, unnecessary violence, unnecessary force, false arrest or detention, false statements in reports, false claims of probable cause or reasonable suspicion or any other evidence of, or complaints of dishonesty, by Officer [E].” Defense counsel filed a supporting declaration asserting that Officer E. overreacted and used excessive force by spraying Chambers with pepper spray. Chambers denied rushing at or physically threatening the officers, and asserted Officer E. lied when he reported that conduct. After Chambers had been disabled by the spray, both officers allegedly had their guns drawn and threatened to shoot him. Judge Willis found good cause to inspect Officer E.’s personnel file, but found no relevant information to disclose.
In August 2005, Chambers filed a supplemental Pitchess motion through his public defender, Kristin Scogin. After being assigned to Chambers’s case, Scogin was assigned to take over a case involving a Ms. Washington (People v. Washington (Super. Ct. San Diego County, No. M947152) (Washington).). As a result, Scogin learned Pitchess information about Officer E. that was ordered disclosed in the Washington case, along with derivative information that had been independently developed.
The trial court in the Washington case had imposed a protective order limiting “[u]se of the information ordered disclosed from the officer’s personnel files” to “the defense of this criminal matter.” On Chambers’s behalf, and as relevant here, Scogin asked the court to release the name of one of the complainants that had been disclosed to Washington. She also asked permission to use, on behalf of Chambers, the derivative information independently developed after the complainant had been disclosed to Washington. In a sealed declaration, Scogin described that derivative information, but did not refer to the complainant by name.
The city attorney opposed the supplemental motion, and Chambers ultimately sought reconsideration of his original Pitchess motion. The trial court concluded the defense was “precluded from using information developed in other Pitchess motions,” but reexamined the personnel file “to make sure that [it] did not miss anything.” The trial court again found no relevant information regarding other complainants.
Defendant’s petition for writ of mandate to the superior court appellate division was denied, but he obtained writ relief from the Court of Appeal. The Court of Appeal held that information regarding the complainant disclosed in the Washington case should be disclosed by the trial court to Chambers subject to an appropriate protective order under section 1045(e). It further held that because it was ordering disclosure of the complainant’s identity to Chambers, the deputy public defender would not violate the section 1045(e) protective order in the Washington case if she used the derivative information acquired during investigation of the Washington matter in the Chambers case.
We granted the San Diego Police Department’s petition for review.
II. DISCUSSION
A. Background
In Pitchess, supra, 11 Cal.3d 531, “we held that a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure ‘a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’ ” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037, fn. 3 (Alford).) “In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted (Santa Cruz).)
A Pitchess motion must describe “the type of records or information sought” and include “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (§ 1043, subds. (b)(2) & (3).) If the defendant establishes good cause, the court must review the records in camera to determine what, if any, information should be disclosed. (§ 1045, subd. (b); People v. Mooc (2001) 26 Cal.4th 1216, 1226.) In providing for in camera review, “the Legislature balanced the accused’s need for disclosure of relevant information with the law enforcement officer’s legitimate expectation of privacy in his or her personnel records.” (Mooc, at p. 1220.)
“ ‘As a further safeguard,’ ” an order of disclosure ordinarily involves revelation of only the “ ‘name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question.’ ” (Alford, supra, 29 Cal.4th at p. 1039.) Section 1045(e) requires the court to impose a protective order providing that the “records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045(e).)
The “relatively low threshold for discovery embodied in section 1043 is offset, in turn, by section 1045’s protective provisions which: (1) explicitly ‘exclude from disclosure’ certain enumerated categories of information (§ 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps ‘justice requires’ to protect the officers from ‘unnecessary annoyance, embarrassment or oppression.’ (§ 1045, subds. (c), (d) & (e).)” (Santa Cruz, supra, 49 Cal.3d at pp. 83-84.)
B. Derivative Information
We consider a situation in which defense counsel has obtained complainant information through the Pitchess process, and defense investigators have interviewed that complainant. If that counsel later represents another defendant and, pursuant to Pitchess, discovers the same complainant information, may the lawyer refer to the derivative information obtained during the earlier follow-up investigation without violating the section 1045(e) protective order?
As noted, section 1045(e) provides that when a court permits disclosure pursuant to section 1043, it must also “order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045(e).) In Alford, supra, 29 Cal.4th 1033, we held the language “ ‘a court proceeding pursuant to applicable law’ ” refers to the statutory Pitchess scheme, and restricts “use of the disclosed information to the proceeding in which it was sought.” (Id. at pp. 1040, 1042, italics added.) This “interpretation of section 1045(e) harmonizes the entire statutory scheme and retains its effectiveness by furthering the legitimate interests of both the defendant and the peace officer.” (Id. at pp. 1042-1043)
In reaching our conclusion, we rejected Alford’s argument that an order limiting use of Pitchess material to the case in which it is sought “undermines fair representation and encourages inefficiency and duplication of effort, in that members of the public defender’s office must feign ignorance of Pitchess information personally known to them and instead file repeated Pitchess motions in subsequent cases, not ‘using’ previously disclosed information in making showings of good cause for disclosure.” (Alford, supra, 29 Cal.4th at p. 1043.) Alford identified no “impediment to the public defender’s ability to represent him,” and the specific Pitchess judicial obligation arguably superseded a public defender’s office rules concerning “attribution to all deputies of knowledge gained by any one of them.” (Ibid., italics omitted)
Alford involved “the information disclosed pursuant to a Pitchess motion.” (Alford, supra, 29 Cal.4th at p. 1037, fn. 2.) We noted that the “parties have not briefed, and we express no views concerning, the treatment of information developed as a result of the receipt of information disclosed pursuant to a Pitchess motion.” (Ibid.; see also id. at p. 1063 (conc. & dis. opn. of Moreno, J.).) That issue is presented here.
Section 1045(e) refers to “records disclosed or discovered.” We conclude that this language means the personnel file information that is ordered disclosed by the trial court. As noted, this information is generally limited to the name, address and telephone number of a prior complainant, other witnesses, and the date of the incident. In that general situation, the statutory description of “records disclosed or discovered” does not extend to information subsequently developed. However, derivative information could reveal that a complaint had been made against a particular officer and the name of the complainant. As a result, it could relate back to information that was disclosed and fall under the protective order. In this situation, however, there is no danger of an unjustified disclosure, as Chambers will receive the name of the officer through his own Pitchess motion.
We adopt the rule formulated by the Court of Appeal for this narrow factual situation. When complainant information has been ordered disclosed to counsel who, when later representing a different defendant, succeeds under Pitchess in discovering the same complainant information relating to the same officer, counsel may then refer to the derivative information uncovered as part of the earlier followup investigation.
Application of the rule is illustrated by the following scenario: Counsel for Defendant A files a Pitchess motion and receives complainant information. An investigator then interviews that complainant, and perhaps other witnesses, thus developing derivative information.
The same attorney later represents Defendant B. Even though the same law enforcement officer may be involved in Defendant B’s case, counsel cannot simply use the derivative information developed in Defendant A’s case. Doing so would reveal complainant information from the officer’s record that is subject to the section 1045(e) protective order under which the disclosure was made in Defendant A’s case.
However, if counsel files a new Pitchess motion in Defendant B’s case, seeking information about the officer and then receives the same complainant’s name as he or she did in Defendant A’s case, the attorney is free to use derivative information previously garnered during the followup investigation.
The section 1045(e) protective order is designed to ensure that disclosure of confidential information is limited to the proceeding in which the disclosure is ordered. Once a subsequent defendant obtains that same information under a valid Pitchess order, there is little justification for precluding review of derivative information. As the Court of Appeal observed, the second “litigant obtains nothing beyond that which the Pitchess statutory scheme contemplates he is able to obtain,” and counsel for the first Pitchess litigant “has not permitted the information to be used for any court proceeding in which a Pitchess relevance determination has not been made.”
This approach is consistent with the purpose of the Pitchess scheme to balance the police officer’s privacy interest in his or her personnel records with the criminal defendant’s interest in obtaining all pertinent information. As the Court of Appeal observed, the “defendant remains able to prepare a defense, and the officer’s privacy interest in the data contained in his personnel file is not affected beyond that which occurred when Pitchess disclosure was ordered.”
The San Diego Police Department relies on a line of cases holding that other discovery methods cannot substitute for compliance with the Pitchess statutory scheme. Here, however, Chambers followed the Pitchess process, and will receive the complainant information that was also released in the Washington case. Our resolution requires both defendants to bring Pitchess motions, and for a trial court to find good cause and relevance in each case.

III. DISPOSITION
The Court of Appeal’s judgment is affirmed.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.










CONCURRING OPINION BY BAXTER, J.


I concur in the majority’s narrow holding that “[w]hen complainant information has been ordered disclosed to counsel who, when later representing a different defendant, succeeds under Pitchess [v. Superior Court (1974) 11 Cal.3d 531] in discovering the same complainant information relating to the same officer, counsel may then refer to the derivative information uncovered as part of the earlier follow up investigation.” (Maj. opn., ante, at pp. 8-9, italics added.) After counsel has won a second Pitchess disclosure, involving the same officer and the same complainant information, no purpose of the statutes and protective orders that safeguard confidential police officer personnel records is served by requiring counsel to perform a meaningless duplicate investigation before using, at trial, derivative information counsel already possesses.
However, I do not interpret the majority’s opinion, or its judgment, to imply that counsel may employ information learned as a direct result of the first Pitchess disclosure to support a later request for Pitchess disclosure in a different case. The statutory scheme, and the protective orders issued thereunder, restrict “use of the . . . information [disclosed through a Pitchess motion] to the proceeding in which it was sought.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 (Alford), italics added.) In this context, I see no reason to distinguish between direct and derivative “use.” Otherwise counsel could win Pitchess disclosure against an officer in one case, obtain derivative information as a result, then invade the hapless officer’s confidential file again and again, in circumvention of Alford, simply by bringing an infinite number of subsequent Pitchess motions, using the previously obtained information to demonstrate the need for new disclosure.
As Alford explained, the statutes’ “careful[] balanc[ing] [of] peace officers’ privacy interests in their personnel records against defendants’ rights of access to information relevant to their defense” requires that Pitchess disclosure be ordered “only on a showing of materiality to a particular case.” (Alford, supra, 29 Cal.4th at p. 1042, italics added.) To establish such materiality, and obtain in camera inspection of the officer’s files, the defendant need only present a “plausible factual foundation” for a claim that, in his or her case, the officer lied or committed other relevant misconduct. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.) The in camera determination whether the files contain relevant and discloseable information should similarly be guided by the circumstances of the particular case in which disclosure is sought. Accordingly, the statutory balance would be upset by allowing counsel to “pile on” against the officer by using, in later Pitchess proceedings, information obtained as the result of an earlier Pitchess disclosure.
On the assumption that the majority opinion and judgment are thus circumscribed, I concur in both.

BAXTER, J.










CONCURRING OPINION BY MORENO, J.


I fully concur with the majority’s holding that derivative information developed through investigation after Pitchess disclosure (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) in an earlier case is not generally subject to a protective order under Evidence Code, section 1045, subdivision (e), when a subsequent defendant files a Pitchess motion and receives the name of the same complainant to which the derivative information pertains. (Maj. opn., ante, at pp. 1-2.) I write separately to express my continuing disagreement with the notion that section 1045, subdivision (e), restricts “ ‘use of the disclosed information to the proceeding in which it was sought.’ ” (Maj. opn., ante, at p. 7, citing Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 (Alford).)
As I explained in my concurring and dissenting opinion in Alford, supra, 29 Cal.4th at pages 1057-1063, such a conclusion is neither prescribed by the plain language of section 1045, subdivision (e), nor is it supported by the legislative history. Both support the conclusion that Pitchess disclosure “may be used in any court proceeding pursuant to applicable law.” (Alford, supra, 29 Cal.4th at p. 1059 (conc. & dis. opn. of Moreno, J.).)
Nor was the court’s conclusion in Alford necessitated by the concededly legitimate privacy interests of law enforcement. The Pitchess process contains adequate safeguards if disclosed records were to be admitted in a subsequent proceeding. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) As I noted in Alford, the screening process preceding the initial disclosure and the requirement that admission in a subsequent proceeding comport with various Evidence Code statutes (e.g., §§ 210 [relevance], 352 [prejudice]) sufficiently protect officers’ privacy. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) Additionally, a trial court in a subsequent proceeding could order any records filed under seal pending its ruling on the records’ admissibility. (§ 1045, subd. (d).)
On the other hand, the court’s interpretation in Alford “forces defense attorneys, city attorneys and trial judges to ‘reinvent the wheel’ with each ‘new’ Pitchess request regarding the same peace officer — defense attorneys must write motions, city attorneys must scour records, and judges must conduct in-chambers hearings, simply to make the same Pitchess determination over and over again. . . . Repetitive Pitchess motions are an unnecessary and enormous waste of scant judicial and governmental resources.” (Alford, supra, 29 Cal.4th at pp. 1061-1062 (conc. & dis. opn. of Moreno, J.).)
Accordingly, I remain of the opinion that section 1045, subdivision (e) allows defendants to use Pitchess discovery in any “court proceeding pursuant to applicable law.”
MORENO, J.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Chambers v. Appellate Division of the Superior Court of San Diego County
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 5/4/06 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S143491
Date Filed: November 26, 2007
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Stephanie Sontag

__________________________________________________________________________________

Attorneys for Appellant:

Steven J. Carroll, Public Defender, Kristin Scogin and Matthew Braner, Deputy Public Defenders, for Petitioner.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster and Mark Harvis, Deputy Public Defenders, for Los Angeles County Public Defender as Amicus Curiae on behalf of Petitioner.

Mary Greenwood, Public Defender (Santa Clara) and Kelley Paul Kulick, Deputy Public Defender, for California Public Defenders Association and Public Defender of Santa Clara County as Amici Curiae on behalf of Petitioner.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Michael J. Aguirre, City Attorney, and David M. Stotland, Deputy City Attorney, for Real Party in Interest.

Dennis Barlow, City Attorney (Burbank) and Juli C. Scott, Chief Assistant City Attorney, for League of California Cities as Amicus Curiae on behalf of Real Party in Interest.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew Braner
Deputy Public Defender
233 “A” Street, Suite 800
San Diego, CA 92101
(619) 338-4705

David M. Stotland
Deputy City Attorney
1200 Third Avenue, Suite 1100
San Diego, CA 92101-4100
(619) 533-5800

Juli C. Scott
Chief Assistant City Attorney
275 E. Olive Avenue
Burbank, CA 91510
(818) 238-5707

San Diego DUI criminal defense attorneys - Source Code litigation New Jersey update:

State v. Chun, et al.
New Jersey Supreme Court
Docket Number 58,879

New Jersey's Source Code question, per closing arguments record presented by an excellent DUI defense attorney John Menzel, J.D. to Judge Michael Patrick King:

Is firmware version 3.11 used in the Alcotest 7110 MK-III-C scientifically reliable by clear and convincing evidence?

From the testimony by examiners on both sides of the question, from revelations dawning for the first time during cross examination, from the overwhelming weight of the evidence, the answer is: NO!

This software is not scientifically reliable at all.

The following remarks address these issues:

¨ What the Supreme Court charged us to do.
¨ What we have learned about that charge in this case.
¨ The legal standards of general acceptance which we must apply.
¨ The particular scientific field in which source code resides.
¨ The relevant scientific community we must consider.
¨ How that scientific community was represented in this case.
¨ How general acceptance is defined.
¨ The quality of proof required.
¨ The burden of proof.
¨ Methods of proof.
¨ The application of standards.
¨ The problems of complexity and culture.
¨ How standards may one day fix these problems.
¨ What to do now.

The Supreme Court’s Charge

After we concluded the first round of these hearings last year, Your Honor ultimately came to these conclusions about Draeger’s source code:
¨ We do not think that this dispute about the source codes has any substantial relevance to our ultimate conclusion, that the Alcotest 7110 instrument is very good at measuring breath alcohol.[1]
¨ The firmware currently in the Alcotest NJ Version 3.11, and any future modifications or upgrades of that present firmware, does not impact upon or affect the scientific reliability, accuracy or precision of the Alcotest evidential breath test instrument to detect, analyze and accurately report a breath alcohol reading.[2]
This was because Your Honor saw “no hint of source code problems or failure throughout this litigation.”[3]
The Supreme Court disagreed. It has now charged us to perform a particular task in this case. Here is what they said:
IT IS ORDERED that, the matter is temporarily remanded to the Special Master for the limited purpose of providing defendants the opportunity to conduct, at defendants' expense, an analysis of the software referred to as Firmware version...3.11 used in the Alcotest 7110..., which analysis is to be limited to determining whether Firmware version...3.11 reliably analyze[s], record[s] and report[s] alcohol breath test results....
The Supreme Court directed Draeger to provide an independent software house for the purpose of:
conducting that analysis...in accordance with the methodology previously agreed upon by defendants and DSDI, as set forth in Addendum A....
Addendum A, a.k.a. the “Sachs protocol” and D-232, provides that
This software house will examine the source code for obvious concerns within the code, and also for consistency with the algorithms as documented in the software.... [and to] certify to the State and the public that the software properly employs the algorithms and that no errors exist in the source code.[4]
Of course, being a Fine Arts major in college, I would not know an “obvious concern” if it bit me.
But two examiners were retained for the purpose of source code review: (a) SysTest, represented by Bruce Geller, and (b) BaseOne, represented by John Wisniewski. They each found what they considered “obvious concerns” with the code, the most telling of which were excessive cyclomatic complexity and an excessive use of global variables.
From their respective examinations, neither examiner could certify to either condition demanded by the Supreme Court. They could not certify that the software properly employs the algorithms. Nor could they certify that no errors exist in the source code.
Without going any further, the State and Draeger have failed to meet the requirements established for this case by our Supreme Court.

What We Have Learned in General
Of course, we have learned a number of things in these hearings that no one knew or appreciated when we started.
First, we learned that the Sachs protocol was incomplete in that the way a software house examines code must be specified with reference to some standard. We saw how a cursory review where no concerted effort is made to find “obvious concerns” will yield a report with innocuous findings and conclusions which, on the surface, sound impressive but, on closer examination, mean nothing. We will speak more of standards later.
Second, we learned that no source code is error free. But code can be written in a way that makes it reliable. So the effort to find error-free code is not a fool’s errand. In reliable code, we constantly search for errors and, when we find them, we correct them according to a systematic, standardized, well-thought-out method. Each time a correction is made over the life of such code, it just gets better and better.
Unfortunately, the Alcotest source code is not reliable. My previous colleagues have provided many examples of just how unreliable this Alcotest source code is.
In any event, the final step of the Sachs protocol’s examination -- that the Alcotest be “tested against and measured in compliance with O.I.M.L. [International Organization of Legal Metrology] specifications adopted and current at the time of such tests” -- is not now applicable to this case.

The Legal Standard We Must Apply
The legal standard we must apply to version 3.11 has been stated in our cases thus:
“[T]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”[5]
“Thus, the test in criminal cases remains whether the scientific community generally accepts the evidence.”[6]
Here is how we must apply these legal requirements:
¨ First, we define the particular field in which this source code analysis resides.
¨ Second, we must consider who is the scientific community encompassing this particular field.
¨ Third, we must consider whether the source code in question here would be generally accepted within the relevant scientific community.

The Particular Field in Which Source Code Resides
The particular fields with which we are concerned in this case are those of computer science, electrical engineering, and software programming -- fields separate and distinct from that of forensic science with which we were so concerned last year. We know this because:
¨ NHTSA [National Highway Traffic Safety Administration] has no programming standards. NHTSA’s Ed Conde relied on incomplete computer generated data -- the alcohol influence reports -- and flawed data, accepting one test that the Alcotest itself rejected.
¨ All of those witnesses from last year that purported to be members of the forensic science field -- Edward Conde, Samuel Chappell, Barry Logan, Rod Gullberg, J. Robert Zettl, Patrick Harding, Thomas Brettell for the State; even Michael Hlastala and Gerald Simpson for the defense -- not only professed no knowledge of computer science but affirmatively disavowed such knowledge.
No one from that community of forensic scientists put it more poetically than Robert Zettl, who declared that, for all he knew, “two magic rocks from Ireland banging together will give you a .10....”[7] Rod Gullberg, recognizing his limitations as a statistician and forensic scientist, specifically recommended that source code be independently verified.[8] That is what our Supreme Court has charged us to do here.

The Relevant Scientific Community
Thus, we leave the field of endeavor in which we examined the Alcotest last year -- that of the forensic science community -- and consider it in these new and closely aligned fields of computer science, electrical engineering, and software programming that encompass source code review.
The relevant witnesses presented by the State last year were Stephen Seidman, Norman Dee, and Hansuli Ryser. This year, the State called SysTest’s Bruce Geller and Norman Dee. Your Honor called Draeger’s Brian Shaffer. The defense called expert examiner John Wisniewski of BaseOne and standards expert Thomas Workman.

Source Code Witnesses
Geller, Wisniewski, and Shaffer had the advantage of having actually reviewed the source code itself, albeit from three distinctly different perspectives.
¨ Geller, hired by Draeger, was able to compile the code early with the help of Draeger’s Shaffer. He used certain automated tools for his examination, including something called Module Finder EX, a “proprietary” program created by SysTest which apparently has problems of its own given the way it has been developed in secret and not according to any recognizable standard. Your Honor may recall Geller’s lament when asked, “Were any development standards adhered to when Module Finder was built?” His response: “Sadly, not.”[9] It is ironic that Geller examined the secret Alcotest code with another secret program for which SysTest could only claim reliability by asserting that it is a trade secret and gave SysTest a competitive edge. Geller’s regrets Module Finder’s lack of standardization because of how hard it has become to maintain that program.
¨ Wisniewski began working on this project believing he was hired by the State. Later, he discovered otherwise. But, nonetheless, he conducted his review using automated tools much like SysTest. But Wisniewski used different automated tools -- notably, a program called lint, a generally available open-source tool which has been described as “verbose,” probably because it found so many errors. Coupled with his demonstrably superior practical experience in embedded system programming for applications from aerospace to washing machines, Wisniewski homed in on very significant specific problems in the Alcotest source code.
¨ Shaffer, the company man, is Draeger’s principle programmer of the application now before us. He uses no standard methodology. Indeed, his coding style seems to be de-evolutionary, given the way he has deleted headers within the code that would ordinarily provide signposts for others to follow. He has conceded to introducing unintentional error like the buffer overflow that Draeger created as a very helpful exhibit in this litigation. The high point of Shaffer’s experience with embedded systems programming prior to his employment with Draeger was in the model railroading field.
Geller, Wisniewski, and Shaffer all appeared to be credible. None had ever testified in court before. Their lack of familiarity with what has been described as this ancient form of Anglo-Saxon combat may have affected the way they prepared for or answered questions. But some specific comments about each of these witnesses are warranted:
¨ First, Geller: He was somewhat evasive when answering questions. He often paused for long periods before giving a response. He often disclaimed a challenge citing the limited scope of his assigned task. He often distanced himself from the report he and the others at SysTest wrote. One must question whether it is the opinion of Geller or SysTest by which we should be guided. It was awful troubling that he lacked command of the powers of two and did not know the definition of an average.
¨ Second, Shaffer: He appeared to respond credibly, even when constrained by his status as a Draeger employee. His responses seemed thoughtful and, for the most part, direct. Indeed, on cross examination, he disclosed errors that neither SysTest nor BaseOne detected -- most notably the algorithm that forced EC and IR results to agree when the EC value drifts too far aware from the IR value. His confession of engaging in questionable practices like deleting header information within the code seems borne more of ignorance than an intent to deceive. Like Geller, he had difficulty with the powers of two and the definition of an average.
¨ Finally Wisniewski: He appeared to be the most objective and credible in his remarks. He began his task under the mistaken impression that he worked for the State. He is the epitome of the independent software reviewer the Supreme Court probably had in mind when they ordered this remand. For the most part, he was able to document every error he discovered and reported about. His discomfort with the use of the term “standards” seemed more semantic than substantive. He preferred the term “developmental methodologies.” The latter term was more consistent with the way he himself reviewed and developed reliable code throughout his career.

Expert Witnesses
The remaining experts -- Norman Dee, Stephen Seidman, and Thomas Workman -- did not have the benefit of actually seeing source code, except for the few snippets offered in evidence. But Thomas Workman is probably the person who is most representative of what the relevant scientific community is for this case. He has more than 30 years experience working in high technology for various corporations in many capacities, including management, engineering, research, quality assurance, and software development.
¨ He has written source code and developed coding standards.
¨ He has used and applied standards in the course of source code review and vendor selection for such massive technology-based companies as Hewlett-Packard, Digital Equipment, Xerox, and Texas Instruments.
¨ As HP’s representative on the IEEE Computer Standards Board, he wrote and reviewed standards. He peer reviewed the work of Thomas McCabe, the man recognized by both BaseOne and SysTest, for developing ways to measure cyclomatic complexity.
¨ For Digital, he performed ISO 9000 certification for a major corporation with operations here and in Scotland .
¨ He has worked with embedded systems dependent on sensors, much as the Alcotest is dependent on sensors.
¨ A major scientific principle in the field, “Workman’s Law,” is named after him!
¨ He has testified not only in courts but also before Congress as an expert on computer software issues.
¨ He is unrebutted by anyone else who has testified in this hearing.
Workman also provides the added credential of patent attorney, adding much depth to his weighty opinions, which Your Honor should not dismiss.
Stephen Seidman testified last year about source code with errors. Your Honor stated:
¨ “If there were errors in the software, Seidman would want to know about them as they would raise questions in his mind about the instrument's accuracy....”[10]
¨ “When shown several AIRs with apparent errors, Seidman said that he would want to understand the reasons for them before he gave an opinion on the accuracy of New Jersey 's breath-testing program....”[11]
Norman Dee, on the other hand, still holds the opinion that source code review is unnecessary and minimizes the importance of the reviews done for the present hearings. This view is clearly at odds with the instructions handed down from our Supreme Court in this case.

General Acceptance Defined
Now that we have defined the scientific community and discussed how they are represented in this case, we can ask: How does a court determine what scientific reliability is, and what are the hallmarks of general acceptance in this community?
To answer this question, let us examine what science and the scientific method is. Scientific method rests on a foundation of testing, standards, and peer review and publication. The U.S. Supreme Court described scientific method this way:
¨ Testing:
Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.[12]
¨ Standards:
[T]he court ordinarily should consider the known or potential rate of error...and the existence and maintenance of standards controlling the technique's operation....[13]
¨ Peer Review and Publication.
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication.”[14] This is because “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.[15] **** The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.[16]

Quality of Proof
Our cases hold that “a belief that the device is broadly accurate is not sufficient.”[17] “Proving general acceptance ‘entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.’"[18]
All four pillars -- prolonged, controlled, consistent, and validated experience -- must stand to support a finding of scientific reliability by that highest of the civil burdens of proof, clear and convincing evidence -- a standard of proof defined as:
evidence that “'produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,' evidence 'so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the precise facts in issue.'"[19]

Burden of Proof
“[T]he responsibility for establishing all conditions as to the admissibility of [Alcotest] results is properly allocated to the State.”[20] And, by extension Draeger, thanks to our Supreme Court’s order permitting Draeger to intervene. As we will see, they have failed to meet that burden. While the defense has no burden whatsoever, we have, nonetheless, not only called the code and Alcotest into question; we have affirmatively demonstrated that it is unreliable and should not be used.

Methods of Proof
A proponent of a newly-devised scientific technology can prove its general acceptance in three ways: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance.[21]
Let’s review these three methods of proof in the present case in reverse order.
We see no judicial opinions about Draeger source code reliability at all. That is because this case is the first of its kind. Other jurisdictions are fighting over discovery of source code. Some have even ordered the production of code. But nowhere else has a review of code taken place as it has here.
Similarly, there are no authoritative scientific or legal writings about Draeger source code. But there is ample authority in the scientific community about what makes source code and computer programs reliable. One need look no further that the bibliography included with Workman’s report to understand the technical and scientific underpinnings of what Wisniewski called proper coding methodologies.
Finally, we examine expert testimony. The great weight of credible expert testimony in this case clearly demonstrates what it takes for a computer program (as represented by source code) to be considered scientifically reliable.

The Application of Standards
For the computer science community, the hallmarks of reliability are embodied in the application of standards -- or more descriptively -- standardized developmental methodologies. John Wisniewski, in the context of his experience and the present code review, discussed such standardized developmental methodologies as yielding, in a technical sense, more reliable code. Tom Workman, from his career experience, told us of how standards were developed, how they are employed, and what makes them scientific.
He told us how standards take into account the first requirement of science by requiring the statement of hypotheses through documentation -- with a requirements document at the outset of coding and further documentation for error detection and error correction.
He told us how standards were developed in a collaborative fashion, subjected to rigorous peer review, and requiring a high degree of consensus. As I recall, the degree of consensus required was something on the order of 80 percent. Dissenters had to explain their dissent, and those views were given full consideration before their proposals were either accepted or rejected.
Standards were developed by industry, IEEE -- not imposed by governments. But governments do adopt them as part of their product specifications when a high degree of reliability is required. Standards are used to keep rockets from blowing up and satellites from crashing. Standards keep hearts beating and help motorists find their way with GPS technology. Standards are important because we know that source code, like human beings, can never be perfect. But, through the application of standards, source code can be scientifically reliable.
Standards have been in use at least 30 years. While there may have been some debate whether coding standards were necessary 20 or 30 years ago, there is no true debate any more. If an application is sufficiently important, it must be developed and maintained according to some standard. There is nothing new or novel about this concept. The use of standards is a prerequisite to a determination that source code is scientifically reliable.
The application with which we are concerned is clearly important. Evidence developed with this technology will send people to jail, particularly in the context of per se offenses under N.J.S. 39:4-50. I daresay it already has. The importance of the application here is more on par with airplane landing gear, pace maker functioning, and satellite navigation than it does with a model train whistle or even a voting machine.
So, would Draeger’s version 3.11 software in use in its Alcotest 7110 MK-III-C be considered generally acceptable for such an important application? The answer is a resounding, NO. This is so for many reasons, including these:
¨ There is no sign of any standard developmental methodology ever being used. If software development standards were like a building code, Draeger’s code would be a slapped-together slipshod tumbled-down shack.
¨ There is no documentation -- no initial requirements document, no pseudo-code, nothing. Norman Dee spoke of pseudo-code, but his definition of pseudo-code differs from that of IEEE. For IEEE, pseudo-code is prospective and the result of prior planning. For Dee , pseudo-code is retrospective and the product of reverse engineering.
¨ Draeger’s source code is too complex and disorganized. As changes are made from one version to the next, errors will be inserted and the code will become more and more unreliable with each revision. It contains blind alleys within a maze of unused, walled-off, and errant code.
¨ The range of accepted deviation was increased to mask potential error. In New Jersey , the legal standard for agreement of results from two breath samples was .01, then 10 percent. That increased to the greater of .02 or 20 percent, effectively eliminating any need for requiring third test verification.
Furthermore, both SysTest and BaseOne found specific problems in the code that raise serious questions as to its reliability. These include:
¨ The disabling of fundamental safeguards.
¨ Incorrect functions as fundamental as averaging.
¨ Arbitrarily substituting data values at various points.
¨ Forcing drifting fuel cells to agree with the infrared sensors, thereby putting the lie to the claim that these two technologies, IR and EC, cross check and verify each other.
My colleagues have already discussed most of these problems, they are extensively catalogued in the reports from BaseOne and SysTest, and they were extensively discussed and explained in testimony from Shaffer, Wisniewski, and Geller.

The Complexity Problem
Let me focus a little now on complexity. The Alcotest source code is much too complex -- a complexity which invites error both in the original coding and in updates to the present code. Both SysTest and BaseOne found complexity to be a real problem undermining any finding of reliability.
McCabe complexity metrics tell us just how complex Draeger’s source code is. Complexity levels should exceed no more that 10, with a level less than 7 recommended, according to SysTest. After all, software engineers, being human beings, can only track so many things at one time. With most of Draeger’s source code modules well exceeding this level, the code is prone to corruption and unpredictable execution. Indeed, one snippet of the code produced by the 3.11 proponents shows how Draeger’s programmer Shaffer unintentionally inserted error when he “upgraded” the source code from version 3.8 to 3.11 by failing to correct buffer capacity and thereby creating the famous buffer overflow.
The prospect of error insertion is very real, given that source code revisions must be made to the present program to account for several factors, including:
¨ The change in Daylight Savings Time.
¨ The need to list the temperature probe serial number and probe value of that temperature probe on any report where such information is relevant, including the AIR, New Standard Solution Change Report, and Calibration, Control Test, and Linearity Reports.
¨ The need to “deploy a software program to create and maintain a centralized data base of digital information stored by all Alcotest 7110s throughout the State.”[22]
Further changes to source code will be inevitable as the law and other circumstances change.
Adding to this complexity is the presence of an excessive number of global variables and a rat’s nest of excess, irrelevant, and purportedly unused code. Indeed, between 40 and 60 percent of the code appears to be irrelevant to the hardware’s functioning. This isn’t just bad housekeeping. These excessive bits and pieces of superfluous code are invitations for error and unnecessarily expose anyone tested on the Alcotest to undetectable error. As Thomas Workman said of our Middlesex County data, the 1900+ alcohol influence reports in that universe appear to be 99 to 100 percent reliable, but in actuality, none can be considered reliable. The notion, as Your Honor had held, that “the Alcotest 7110 uses newer technology and is more transparent because it produces a printout,”[23] is simply incorrect.

The Institutional Problem
Complexity and errors are certainly real issues compromising the scientific reliability of Alcotest source code. So, too, is Draeger’s failure to document its coding processes and its failure to use standards. But the biggest problem of all is institutional. Draeger’s corporate culture elevates:
¨ False appearances above scientific reliability.
¨ So-called trade secrecy above objective verification.
¨ Profits above justice.
Compounding Draeger’s culture of concealment is our own Attorney General’s culture of ignorance. While the AG’s office knew it was embarking into a novel scientific field with equipment dependent on a computer, it failed to consult anyone with the requisite expertise in computer science -- a negligent lack of inquisitiveness. They not only failed to see any problems. They did not even look.
Draeger can implement standards, but that implementation may fail if their culture of concealment persists. The State may find an appropriate breath testing instrument, but only if they open their eyes and look the right way and in the right places.

How Standards Fix the Problems
Despite these complementary cultures of concealment and ignorance, perhaps Draeger and the State, respectively, can save the Alcotest -- but not with its present source code version. It is impossible to make the Alcotest using version 3.11 reliable. If throwing all readings out in pending cases is “throwing the baby out with the bath water,” that is what must be done.
To save the Alcotest -- to make it scientifically reliable -- to avoid the necessity of serial courtroom proceedings to determine whether the device is scientifically reliable -- Draeger, with direction from the State, must adopt recognized standards. They must make sure to take a scientific approach to source code development, error detection, and error correction -- just as I am sure they do with their medical devices. Standards will force Draeger to:
¨ Assure that, in initial coding, most common errors are avoided.
¨ Assume that all released code is still imperfect.
¨ Institutionalize a systematic search for imperfections.
¨ Require documentation at both implementation stage and for each correction.
In short, the Alcotest source code must be rewritten from scratch and deployed correctly, scientifically, according to a recognized standard, and in a traceable provable way. Only then can it be considered scientifically reliable.

Conclusion
We have learned that the Alcotest 7110 using firmware version 3.11 is just as likely to produce results that inculpate the innocent and exculpate the guilty. We know that the code, and, thus, the instrument itself, is scientifically unreliable.
The right thing to do is to throw out all of its results from every case now pending.
But knowing what the right thing to do is, and doing it, are often two different things. Factors beyond the realm of objective scientific principles may affect these decisions.
I fear that extraneous unrelated facts that have nothing to do with whether the Alcotest is reliable will dictate an unjust outcome to this case. Those facts relate to the way both the State and our Supreme Court have handled the Alcotest and disserved the public to date.
The State selected, approved, and implemented the Alcotest program improperly by:
¨ Formulating a bid specification that permitted only one manufacturer’s product and precluded any competition in the selection process.
¨ Delaying the replacement of the antiquated Breathalyzer until it became so out of date that it could no longer be equipped or maintained.
¨ Promulgating regulations that handcuffed it to the Alcotest.
¨ Rolling out the Alcotest in such a reckless and overpowering way that it is now the only technology available for breath testing in most of New Jersey .
¨ Ordering arbitrary changes to the source code such that range of agreement between breath test results would obscure issues third tests might otherwise flush out.
The Supreme Court disregarded well-established evidentiary principles and constitutional protections by:
¨ Issuing a premature order in January 2006 that requires municipal courts to receive Alcotest results.
¨ Entering this Order sua sponte without providing the parties with an opportunity to be heard.
¨ Encompassing within the Order not only the present parties to the above captioned matter but all similarly situated defendants [i.e., those defendants with cases involving Alcotest 7110 breath test evidence].
¨ Requiring defendants to face conviction based on unreliable incompetent evidence.
¨ Creating a presumption of guilt based on presumably incompetent evidence.[24]
¨ Precluding the right of defendants to timely confront this evidence against them.[25]
¨ Causing undue prejudice and unfair trials.
¨ Improperly imposing collateral consequences like insurance premium increases, job loss, and driving privilege revocations for out-of-State drivers.
¨ Unduly delaying disposition, implicating the right to a speedy trial.[26]
As a result:
¨ Innocents have faced conviction based on this incompetent evidence.
¨ Guilty people have been released, also based on this incompetent evidence.
¨ Those whose driving privileges should have been revoked were allowed to drive.
¨ Those whose driving privileges should not have been revoked have lost jobs, gone broke, failed their friends and families.

I am concerned that the tragic and untimely death of a young woman by another woman whose DUI conviction was stayed based on the Supreme Court’s Order in this case will lead to an over-reaction.

I am concerned that, given the way the State and the Supreme Court have created an almost untenable situation in the administration of DUI defendants, this Court will “throw the baby out with the bath water” by whitewashing the terrible truth that was uncovered in this case and, to save face, convict innocent people.

Unfortunately, there is no easy, face-saving way to rationalize these extraneous mistakes away. This Court, the Attorney General, can only acknowledge that these mistakes were made and make amends by learning from their mistakes.

Relief Requested

The only reasonable recommendations to make to the Supreme Court are these:

¨ Declare the Alcotest 7110 using firmware version 3.11 unreliable and unscientific.
¨ Exclude all Alcotest results in all prosecutions affected by the Supreme Court’s January 2006 Order.
¨ Vacate all refusal convictions where there was some indication that the defendant blew into the machine.




--------------------------------------------------------------------------------

[1] SMR45.
[2] SMR233.
[3] SMR45.
[4] Emphasis added.
[5] State v. Harvey, 151 N.J. 117, 169 (1997), quoting Frye v. United States, 293 F. 1013, 1013-14 (D.C.Cir. 1923) (emphasis added).
[6] State v. Harvey, 151 N.J. 117, 170 (1997).
[7] 15T7-21/23.
[8] 13T52-13/24, 13T53-24/54-4; D-16
[9] 72T155-8/10.
[10] SMR108, citing 18T67.
[11] SMR108, citing 18T77, D-59, D-60, D-61, D-62, D-63, D-64).
[12] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
[13] Id. , 509 U.S. at 594 (citations omitted).
[14] Id. , 509 U.S. at 593.
[15] Id.
[16] Id. , 509 U.S. at 594.
[17] In re LTI Marksman 20-20 Laser Speed Detection System, 314 N.J.Super. 211, 230 (Law Div. 1996) [“Laser I”].
[18] State v. Harvey, 151 N.J. 117, 171 (1997), quoting Rubanic v. Witco Chemical Corp., 125 N.J. 421, 436 (1991).
[19] In re Seaman, 133 N.J. 67, 74 (1993) (citations omitted).
[20] Romano v. Kimmelman, 96 N.J. 66, 91 (1984).
[21] State v. Harvey, 151 N.J. 117, 170 (1997).
[22] SMR247.
[23] SMR108, citing 57T23-24.
[24] Romano v. Kimmelman, 96 N.J. 66, 90 (1984). See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
[25] See Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); see also Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[26] See State v. Farrell, 320 N.J.Super. 425 (App.Div. 1999); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

San Diego DUI criminal defense attorneys news

For about $11, San Diego County area DUI Police could capture & save all or part of a San Diego DUI arrestee's breath sample. The Intoxilyzer 5000 in Colorado and New Hampshire saves the last part of the breath sample in a "Toxtrap".

Books & Journals/Journal of Forensic Sciences Volume 30, Issue 1 (January 1985)

ISSN: 0022-1198
Published Online: 1 January 1985
Page Count: 8

Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis
Bergh, AK
Laboratory director, Ventura Sheriff's Crime Laboratory, Ventura, CA.

Experimental studies were carried out to investigate the accuracy, precision, and reliability of ToxTrap silica gel tubes relative to the capture, from Intoxilyzers®, and subsequent analysis of alcohol derived from Simulator vapors or breath samples. Factors influencing analytical results, such as the presence of moisture in the tubes, were investigated. Comparisons were made between immediate, direct Intoxilyzer results and ToxTrap tube results obtained by a gas chromatographic technique.

Paper ID: JFS301850186

Link to the Case Preview: http://supreme.justia.com/us/467/479/

Link to the Full Text of Case: http://supreme.justia.com/us/467/479/case.html

U.S. Supreme Court
CALIFORNIA v. TROMBETTA, 467 U.S. 479 (1984)
467 U.S. 479
CALIFORNIA v. TROMBETTA ET AL.
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT

No. 83-305.

Argued April 18, 1984
Decided June 11, 1984



When stopped in unrelated incidents on suspicion of drunken driving on California highways, each respondent submitted to a Intoxilyzer (breath-analysis) test and registered a blood-alcohol concentration high enough to be presumed to be intoxicated under California law. Although it was technically feasible to preserve samples of respondents' breath, the arresting officers, as was their ordinary practice, did not do so. Respondents were then all charged with driving while intoxicated. Prior to trial, the Municipal Court denied each respondent's motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath that the respondents claim would have enabled them to impeach the incriminating test results. Ultimately, in consolidated proceedings, the California Court of Appeal ruled in respondents' favor, concluding that due process demanded that the arresting officers preserve the breath samples.

Held:

The Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial, and thus here the State's failure to preserve breath samples for respondents did not constitute a violation of the Federal Constitution. Pp. 485-491.


(a) To the extent that respondents' breath samples came into the California authorities' possession, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. The authorities did not destroy the breath samples in a calculated effort to circumvent the due process requirement of Brady v. Maryland, 373 U.S. 83, and its progeny that the State disclose to criminal defendants material evidence in its possession, but in failing to preserve the samples the authorities acted in good faith and in accord with their normal practice. Pp. 485-488.

(b) More importantly, California's policy of not preserving breath samples is without constitutional defect. The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain

Page 467 U.S. 479, 480

comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case. Pp. 488-490.


142 Cal. App. 3d 138, 190 Cal. Rptr. 319, reversed and remanded.
MARSHALL, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 491.

Charles R. B. Kirk, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van De Kamp, Attorney General, William D. Stein, Assistant Attorney General, and Gloria F. De Hart, Deputy Attorney General.

John F. DeMeo argued the cause for respondents. With him on the brief were Thomas R. Kenney, J. Frederick Haley, and John A. Pettis.*


[Footnote *] Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, James B. Early, Special Assistant Attorney General, and Thomas L. Fabel, Deputy Attorney General, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Edwin Lloyd Tittman, Attorney General of Mississippi, and Mike Greely, Attorney General of Montana; for the Appellate Committee of the California District Attorney's Association by John R. Vance, Jr.; and for the National District Attorneys Association, Inc., et al. by David Crump, Wayne W. Schmidt, James P. Manak, and Edwin L. Miller, Jr.

George L. Schraer and Lisa Short filed a brief for the State Public Defender of California as amicus curiae urging affirmance.

Briefs of amici curiae were filed for the State of North Carolina by Rufus L. Edmisten, Attorney General, and Isaac T. Avery III, Special Deputy Attorney General; for the County of Los Angeles by Robert H. Philibosian, Harry B. Sondheim, and John W. Messer; and for the California Public Defender's Association et al. by Albert J. Menaster, William M. Thornbury, and Ephraim Margolin.

JUSTICE MARSHALL delivered the opinion of the Court.

The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U.S. 97 (1976); Brady v.

Page 467 U.S. 479, 481

Maryland, 373 U.S. 83 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.


I
The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor.[Footnote 1] The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:


"Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of `alveolar' (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then

Page 467 U.S. 479, 482

checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant." 142 Cal. App. 3d 138, 141-142, 190 Cal. Rptr. 319, 321 (1983) (citations omitted).


In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test.[Footnote 2] Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal. Veh. Code Ann. 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal. Veh. Code Ann. 23102 (West 1971) (amended 1981).
Prior to trial in Municipal Court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible,[Footnote 3] California law enforcement officers

Page 467 U.S. 479, 483

do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.[Footnote 4]

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal. App. 3d, at 141-142, 190 Cal. Rptr., at 320-321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal. 3d 641, 527 P.2d 361 (1974), the Court of Appeal concluded: "Due process demands simply 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

Page 467 U.S. 479, 484

systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant." 142 Cal. App. 3d, at 144, 190 Cal. Rptr., at 323.[Footnote 5] The court granted respondents Ward and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037 (1984), and now reverse.

Page 467 U.S. 479, 485



II
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

Page 467 U.S. 479, 486


Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense.[Footnote 6] 458 U.S., at 873.

We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can

Page 467 U.S. 479, 487

grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing - as the California Court of Appeal did in this case - the State's most probative evidence.

One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:


"If the agents' notes . . . were made only for the purpose of transferring the data thereon . . ., and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right." Id., at 242.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the

Page 467 U.S. 479, 488

Intoxilyzer.[Footnote 7] The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." Killian v. United States, supra, at 242. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

More importantly, California's policy of not preserving breath samples is without constitutional defect. 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.[Footnote 8]

Page 467 U.S. 479, 489

To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health.[Footnote 9] To protect suspects against machine malfunctions, the Department has developed test pro