dissenting:
I respectfully dissent. The thrust of our discovery rules is to discourage blind man’s bluff and to make the search for truth meaningful. See People v. Smith, 185 Colo. 369, 524 P.2d 607 (1974).
The breathalyzer sample falls within the range of discovery permitted by Crim. P. 16(a)(4). By even the strictest standards, this specifically requested evidence was relevant and material in a constitutional sense. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This evidence creates a presumption of intoxication under our statute. Section 42-4-1202(2), C.R.S. 1973. See also State v. Teare, 129 N.J.Sup. 562, 324 A.2d 131 (1974).
The issue here is not police misconduct. It is more fundamental. Failure of the prosecution to produce a sample of the evidence for testing purposes denies the defendant the opportunity to independently examine the physical evidence which incriminates him. In my opinion, to deny discovery is to deny a fair trial and constitutes a deprivation of due process of law. See United States v. Agurs, supra; Giles v. Maryland, supra; Brady v. Maryland, supra.
The issue here is whether, once the state has elected to give a test, the defendant should have an opportunity to independently examine the same physical evidence which the prosecution offers to incriminate him. Denial of the opportunity, especially where the evidence is not necessarily consumed by police testing, is a denial of due process. See Lauderdale v. State, 548 P.2d 376 (Alaska 1976); People v. Hitch, 12 Cal.3d 641, 527 P.2d 361, 117 Cal.Rptr. 9 (1974).
The authorities uniformly recognize that the various forms of the breathalyzer test are in many ways the least accurate of the three tests permitted by our statute. See, e.g., Mason and Dubowski, Breath-Alcohol Analysis: Uses, Methods, and Some Forensic Problems — Review and Opinion, 21 Journal of Forensic Sciences 9 (1976); R. Ervin, Defense of Drunk Driving Cases, ch. 18 (1974 and Supp. 1976); cf, Watts, Some Observations on Police-Administered Tests for Intoxication, in P.L.I., Drunk Driving Cases: Prosecution and Defense (1970). Moreover, the literature in the field of forensic science demonstrates that the development of reliable and inexpensive techniques and devices which allow the preservation of breath samples is an accomplished fact.
The defendant established a prima facie case of a denial of due process by a request for the sample and the concession by the prosecution that no sample had been preserved. In a suppression hearing under Colorado law, the burden of proving compliance with constitutional requirements is on the prosecution. See, e.g., Mora v. People, 178 Colo. 279, 496 P.2d *451045 (1972); People v. LaRacco, 178 Colo. 196, 496 P.2d 314 (1972); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); People v. Chacon, 177 Colo. 368, 494 P.2d 79 (1972); People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971); see also People v. Cram, 180 Colo. 418, 505 P.2d 1299 (1973). The majority opinion departs, without benefit of citation, from this well-established principle. The majority opinion places the burden of proof upon the defendant by explicitly penalizing the defendant for the failure to produce evidence that the sample taken by the prosecution was preservable.
The prosecution has the duty to make earnest efforts to preserve samples of incriminating evidence. See People v. Hitch, supra; United States v. Bryant, 439 F.2d 642 (D.C. App. 1971). No showing of earnest effort was made. By leaving the option of an unimpeachable breath sample open to the state, the defendant is denied the opportunity to effectively examine the most crucial evidence against him. He is left only with the naked results of the test. This violates both the spirit and the letter of discovery and fundamental fairness.
Accordingly, I would sustain the trial court’s ruling and dismiss the charges against the defendant because of a denial of due process.
MR. JUSTICE GROVES joins me in this dissent.