Mills

This is a People’s appeal pursuant to Penal Code section 1238, subdivision (a)(8) following a dismissal pursuant to section 1385. The dismissal was based on the People’s announced inability to proceed to trial after the court’s suppression of the respondent’s intoxilyzer breath test results. The issues are whether the People have a right to appeal and, if so, whether the court erred in suppressing the breath test results because the police officers did not advise respondent that no sample would be retained for independent analysis if he chose a breath rather than blood or urine test. We find in the affirmative on both issues and reverse.

Prior to the commencement of jury selection, respondent moved to suppress the results of his June 3, 1983 breath test following his arrest. Respondent was charged with violations of Vehicle Code section 23153, subdivisions (a) and (b), driving under the influence and with an excessive blood alcohol proximately causing injury. The basis for the motion were claimed violations of his constitutional rights to due process and equal protection as a result of the intoxilyzer’s failure to collect and preserve a sample of breath for independent…