People v. Miller

These three cases all arise from misdemeanor prosecutions for driving while under the influence of intoxicating liquor (Veh. Code, § 23102). All raise the question whether the recent decision of the Supreme Court (People v. Hitch, 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ]) should be extended to render inadmissible the results of all chemical tests of breath conducted by use of the “Omicron Intoxilyzer.” The appellate department of a superior court certified each case to us. In light of the purchase and use of the intoxilyzer in many counties, and the diversified views among lower courts, we ordered transfer, here. (Cal. Rules of Court, rule 62.)

Munroe was convicted of driving under the influence of intoxicating liquor after jury trial in the Justice Court of Del Norte County Judicial District. The prosecution evidence included results of an intoxilyzer test of his breath which showed an alcohol blood content of .16 percent. He appealed. The appellate department held that Hitch required not only retention of preservable evidence, but also the reduction of test material to preservable form. It ruled that due process was denied by admission in evidence of the…