Noonan

A municipal court jury found defendant guilty of drunk driving (§ 23102, Veh. Code); on appeal the appellate department of the superior court reversed the judgment. Acting under subdivision (a) of rule 63, California Rules of Court, the appellate department on its own motion certified the cause “to settle important questions of law and to secure uniformity of decisions.” The questions presented by it are “1. What duty, if any, do law enforcement officers have as to preservation of test ampules used in breathalyzer tests for sobriety?

“2. Is the burden upon the People to show that the preservation of the ampule is impossible or would not benefit defendant? Or

“3. Is the burden upon the defendant to show that the preservation is possible and would benefit the defendant?” This court ordered the cause transferred to it.

The record shows that defendant was apprehended after Officer Nichols observed him traveling at a high rate of speed and driving in an erratic manner; based on defendant’s physical condition, the strong odor of alcohol on his breath and his inability to satisfactorily perform any of the field sobriety tests, the officer formed the opinion defendant was…