STATE of North Carolina
v.
Charles Clifton JONES.
No. 9115SC562.
Court of Appeals of North Carolina.
May 5, 1992.*775 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Joseph P. Dugdale, Raleigh, for the State.
Coleman, Bernholz, Bernholz, Gledhill, Hargrave & Herman by John D. Loftin, Hillsborough, for defendant-appellant.
ORR, Judge.
The question on appeal is whether the trial court erred by denying defendant's motion to suppress the breathalyzer results. Defendant asserts that failure to take and to preserve an additional breath sample for independent testing by defendant or to produce the control and test ampules for defendant's examination violates state and federal due process.
The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment does not require state or local law enforcement agencies to preserve breath samples in order to introduce breath analysis results at trial. California v. Trombetta, 467 U.S. 479, 491, 104 S. Ct. 2528, 2535, 81 L. Ed. 2d 413, 423 (1984). In reaching this conclusion, the Court distinguished access-to-evidence cases, which require the prosecution to deliver exculpatory evidence to the defendant, from cases in which the government may have a duty to preserve potentially exculpatory evidence on behalf of a defendant. Failure to make available exculpatory evidence clearly violates the due process guarantee to present a meaningful defense, whereas failure to preserve potentially exculpatory evidence does not automatically constitute a violation of the Federal Constitution. 467 U.S. at 485-86, 104 S.Ct. at 2532-33, 81 L. Ed. 2d at 420-21.
In Trombetta, the Court first noted that the officers acted in good faith and in accordance with their normal practice when they destroyed the breath samples. 467 U.S. at 488, 104 S.Ct. at 2533-34, 81 L. Ed. 2d at 422, citing Killian v. United States, 368 U.S. 231, 82 S. Ct. 302, 7 L. Ed. 2d 256 (1961). Of primary significance, however, when determining if there is a constitutional duty to preserve evidence is whether the evidence in question *776 meets the standard of "constitutional materiality." 467 U.S. at 489, 104 S.Ct. at 2534, 81 L. Ed. 2d at 422, citing U.S. v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1979). In order to meet this standard, evidence must possess both an exculpatory value that was apparent before the evidence was destroyed and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
In the case at bar, the trial court found as fact that the sample and test ampules were disposed of by the officer performing the test in accordance with standard test procedures. Defendant does not challenge this finding or make any allegation to the contrary. More importantly, defendant presented no evidence to indicate that the breath samples would have been exculpatory. We also note that defendant potentially has other means of calling into question the reliability of the breath samples and demonstrating his innocence. These alternative means included attacking the reliability of the particular machine used in performing the breathalyzer test. See e.g., N.C.Gen.Stat. § 20-139.1(b2)(2) (breath analysis results inadmissible if preventive maintenance not performed). Defendant also has a statutory right to have a witness present when the breathalyzer test is administered. N.C.Gen.Stat. § 20-16.2(6) (person charged has the right to call an attorney and select a witness to view testing procedure provided testing may not be delayed for longer than 30 minutes). Furthermore, defendant has the right, pursuant to N.C.Gen.Stat. § 20-139.1(d) to have a qualified person of his own choosing administer additional chemical tests, or to have a qualified person withdraw blood for later testing by a person of defendant's choosing. See e.g., State v. Bumgarner, 97 N.C.App. 567, 389 S.E.2d 425, disc. review denied, 326 N.C. 599, 393 S.E.2d 873 (1990) (procedure established by N.C.Gen.Stat. § 20-139.1(d) for obtaining additional chemical tests satisfies due process requirements). Finally, defendant can cross-examine the officer who administered the test and the charging officer and can call witnesses to testify regarding the amount of alcohol consumed and present medical evidence as to the effect of the alcohol consumed.
Likewise, we conclude that the chemical analysis statute does not violate the Law of the Land Clause of Article I, Section 19 of our State Constitution. The Law of the Land Clause is synonymous with Fourteenth Amendment due process. State v. Smith 90 N.C.App. 161, 368 S.E.2d 33 (1988). In construing the Law of the Land Clause, our courts have historically held that while decisions of the U.S. Supreme Court concerning federal due process are not binding on the courts of this state, they are highly persuasive. 90 N.C.App. at 163, 368 S.E.2d at 35, citing Watch Co. v. Brand Distributors and Watch Co. v. Motor Market, 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974).
Defendant, relying on In re Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953), argues that the Law of the Land Clause requires the prosecution to produce equivalent breath samples and control ampules so that the accused may test, explain or rebut the results of the breath test. We disagree. First, Gupton is factually distinguishable from the case at bar. In Gupton, the trial judge made an independent investigation of the private lives of the litigants in a custody proceeding. The information gathered as a result of this secret investigation was then relied upon in making the factual adjudication. In holding that the constitutional right of the petitioner was violated by this practice, Justice Ervin stated that "the constitutional right... to an adequate and fair hearing requires that [the litigant] be apprised of all the evidence received by the court and given an opportunity to test, explain, or rebut it." Id. at 304, 77 S.E.2d at 717-18. In contrast, defendant in the case at bar had ample opportunity and adequate means to test, explain, or rebut the state's evidence. This was in no way an adjudication based on unrevealed evidence gathered in secret from a source undisclosed to defendant or his counsel. Absent any evidence to suggest that the breath samples and test ampules *777 would provide exculpatory evidence, we cannot say that as a matter of constitutional law, the defendant has been denied his due process rights under the state or federal Constitution. The trial court therefore did not err in denying defendant's motion to suppress evidence obtained as the result of a breathalyzer test.
No error.
HEDRICK, C.J., and WALKER, J., concur.