467 U.S.

479
104 S. Ct. 2528
81 L. Ed. 2d 413

CALIFORNIA
v.
TROMBETTA ET AL.
No. 83-305

SUPREME COURT OF THE UNITED STATES

April 18, 1984, Argued
June 11, 1984, Decided

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT.
142 Cal. App. 3d 138, 190 Cal. Rptr. 319, reversed and remanded.
Charles R. B. Kirk, Deputy Attorney General of California, argued the
cause for petitioner. With him on the briefs were John K. Van De Kamp,
Attorney General, William D. Stein, Assistant Attorney General, and
Gloria F. De Hart, Deputy Attorney General.
John F. DeMeo argued the cause for respondents. With him on the brief
were Thomas R. Kenney, J. Frederick Haley, and John A. Pettis. *
* Briefs of amici curiae urging reversal were filed for the State of
Minnesota et al. by Hubert H. Humphrey III, Attorney General of
Minnesota, James B. Early, Special Assistant Attorney General, and
Thomas L. Fabel, Deputy Attorney General, Jim Smith, Attorney General
of Florida, Linley E. Pearson, Attorney General of Indiana, Edwin Lloyd
Tittman, Attorney General of Mississippi, and Mike Greely, Attorney
General of Montana; for the Appellate Committee of the California
District Attorney's Association by John R. Vance, Jr.; and for the National
District Attorneys Association, Inc., et al. by David Crump, Wayne W.
Schmidt, James P. Manak, and Edwin L. Miller, Jr.
George L. Schraer and Lisa Short filed a brief for the State Public
Defender of California as amicus curiae urging affirmance.

Briefs of amici curiae were filed for the State of North Carolina by Rufus
L. Edmisten, Attorney General, and Isaac T. Avery III, Special Deputy
Attorney General; for the County of Los Angeles by Robert H.
Philibosian, Harry B. Sondheim, and John W. Messer; and for the
California Public Defender's Association et al. by Albert J. Menaster,
William M. Thornbury, and Ephraim Margolin.
MARSHALL, J., delivered the opinion for a unanimous Court.
O'CONNOR, J., filed a concurring opinion, post, p. 491.

1 Due Process Clause of the Fourteenth Amendment requires the State to disclose
The
to criminal defendants favorable evidence that is material either to guilt or to
punishment. United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373
U.S. 83 (1963). This case raises the question whether the Fourteenth Amendment
also demands that the State preserve potentially exculpatory evidence on behalf of
defendants. In particular, the question presented is whether the Due Process Clause
requires law enforcement agencies to preserve breath samples of suspected drunken
drivers in order for the results of breath-analysis tests to be admissible in criminal
prosecutions.
*2 The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the
concentration of alcohol in the blood of motorists suspected of driving while under
the influence of intoxicating liquor. n1 The Intoxilyzer analyzes the suspect's breath.
To operate the device, law enforcement officers follow these procedures:
3
"Prior
to any test, the device is purged by pumping clean air through it until readings
of 0.00 are obtained. The breath test requires a sample of 'alveolar' (deep lung) air; to
assure that such a sample is obtained, the subject is required to blow air into the
intoxilyzer at a constant pressure for a period of several seconds. A breath sample is
captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol
level. Two samples are taken, and the result of each is indicated on a printout card.
The two tests must register within 0.02 of each other in order to be admissible in
court. After each test, the chamber is purged with clean air and then checked for a
reading of zero alcohol. The machine is calibrated weekly, and the calibration
results, as well as a portion of the calibration samples, are available to the
defendant." 142 Cal. App. 3d 138, 141-142, 190 Cal. Rptr. 319, 321 (1983)
(citations omitted).
4 unrelated incidents in 1980 and 1981, each of the respondents in this case was
In
stopped on suspicion of drunken driving on California highways. Each respondent
submitted to an Intoxilyzer test. n2 Each respondent registered a blood-alcohol
concentration substantially higher than 0.10 percent. Under California law at that

time, drivers with higher than 0.10 percent blood-alcohol concentrations were
presumed to be intoxicated. Cal. Veh. Code Ann. 23126(a)(3) (West 1971)
(amended 1981). Respondents were all charged with driving while intoxicated in
violation of Cal. Veh. Code Ann. 23102 (West 1971) (amended 1981).
5
Prior
to trial in Municipal Court, each respondent filed a motion to suppress the
Intoxilyzer test results on the ground that the arresting officers had failed to preserve
samples of respondents' breath. Although preservation of breath samples is
technically feasible, n3 California law enforcement officers do not ordinarily
preserve breath samples, and made no effort to do so in these cases. Respondents
each claimed that, had a breath sample been preserved, he would have been able to
impeach the incriminating Intoxilyzer results. All of respondents' motions to
suppress were denied. Respondents Ward and Berry then submitted their cases on
the police records and were convicted. Ward and Berry subsequently petitioned the
California Court of Appeal for writs of habeas corpus. Respondents Trombetta and
Cox did not submit to trial. They sought direct appeal from the Municipal Court
orders, and their appeals were eventually transferred to the Court of Appeal to be
consolidated with the Ward and Berry petitions. n4
6 California Court of Appeal ruled in favor of respondents. After implicitly
The
accepting that breath samples would be useful to respondents' defenses, the court
reviewed the available technologies and determined that the arresting officers had
the capacity to preserve breath samples for respondents. 142 Cal. App. 3d, at 141142, 190 Cal. Rptr., at 320-321. Relying heavily on the California Supreme Court's
decision in People v. Hitch, 12 Cal. 3d 641, 527 P. 2d 361 (1974), the Court of
Appeal concluded: "Due process demands simply that where evidence is collected
by the state, as it is with the intoxilyzer, or any other breath testing device, law
enforcement agencies must establish and follow rigorous and systematic procedures
to preserve the captured evidence or its equivalent for the use of the defendant." 142
Cal. App. 3d, at 144, 190 Cal. Rptr., at 323. n5 The court granted respondents Ward
and Berry new trials, and ordered that the Intoxilyzer results not be admitted as
evidence against the other two respondents. The State unsuccessfully petitioned for
certiorari in the California Supreme Court, and then petitioned for review in this
Court. We granted certiorari, 464 U.S. 1037 (1984), and now reverse.
II
7
Under
the Due Process Clause of the Fourteenth Amendment, criminal prosecutions
must comport with prevailing notions of fundamental fairness. We have long
interpreted this standard of fairness to require that criminal defendants be afforded a
meaningful opportunity to present a complete defense. To safeguard that right, the
Court has developed "what might loosely be called the area of constitutionally
guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858,

867 (1982). Taken together, this group of constitutional privileges delivers

exculpatory evidence into the hands of the accused, thereby protecting the innocent
from erroneous conviction and ensuring the integrity of our criminal justice system.
8 most rudimentary of the access-to-evidence cases impose upon the prosecution
The
a constitutional obligation to report to the defendant and to the trial court whenever
government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272
(1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants
are entitled to much more than protection against perjury. A defendant has a
constitutionally protected privilege to request and obtain from the prosecution
evidence that is either material to the guilt of the defendant or relevant to the
punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence
of a specific request, the prosecution has a constitutional duty to turn over
exculpatory evidence that would raise a reasonable doubt about the defendant's guilt.
United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the
contents of plea agreements with key government witnesses, see Giglio v. United
States, 405 U.S. 150 (1972), and under some circumstances may be required to
disclose the identity of undercover informants who possess evidence critical to the
defense, Roviaro v. United States, 353 U.S. 53 (1957).
9
Less
clear from our access-to-evidence cases is the extent to which the Due Process
Clause imposes on the government the additional responsibility of guaranteeing
criminal defendants access to exculpatory evidence beyond the government's
possession. On a few occasions, we have suggested that the Federal Government
might transgress constitutional limitations if it exercised its sovereign powers so as
to hamper a criminal defendant's preparation for trial. For instance, in United States
v. Marion, 404 U.S. 307, 324 (1971), and in United States v. Lovasco, 431 U.S. 783,
795, n. 17 (1977), we intimated that a due process violation might occur if the
Government delayed an indictment for so long that the defendant's ability to mount
an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal,
supra, we acknowledged that the Government could offend the Due Process Clause
of the Fifth Amendment if, by deporting potential witnesses, it diminished a
defendant's opportunity to put on an effective defense. n6 458 U.S., at 873.
10 have, however, never squarely addressed the government's duty to take
We
affirmative steps to preserve evidence on behalf of criminal defendants. The absence
of doctrinal development in this area reflects, in part, the difficulty of developing
rules to deal with evidence destroyed through prosecutorial neglect or oversight.
Whenever potentially exculpatory evidence is permanently lost, courts face the
treacherous task of divining the import of materials whose contents are unknown
and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870.
Moreover, fashioning remedies for the illegal destruction of evidence can pose
troubling choices. In nondisclosure cases, a court can grant the defendant a new trial

at which the previously suppressed evidence may be introduced. But when evidence
has been destroyed in violation of the Constitution, the court must choose between
barring further prosecution or suppressing -- as the California Court of Appeal did in
this case -- the State's most probative evidence.
11 case in which we have discussed due process constraints on the Government's
One
failure to preserve potentially exculpatory evidence is Killian v. United States, 368
U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false
testimony in violation of 18 U. S. C. 1001. A key element of the Government's
case was an investigatory report prepared by the Federal Bureau of Investigation.
The Solicitor General conceded that, prior to petitioner's trial, the F. B. I. agents who
prepared the investigatory report destroyed the preliminary notes they had made
while interviewing witnesses. The petitioner argued that these notes would have
been helpful to his defense and that the agents had violated the Due Process Clause
by destroying this exculpatory evidence. While not denying that the notes might
have contributed to the petitioner's defense, the Court ruled that their destruction did
not rise to the level of constitutional violation:
12 the agents' notes . . . were made only for the purpose of transferring the data
"If
thereon . . . , and if, having served that purpose, they were destroyed by the agents in
good faith and in accord with their normal practices, it would be clear that their
destruction did not constitute an impermissible destruction of evidence nor deprive
petitioner of any right." Id., at 242.
13 many respects the instant case is reminiscent of Killian v. United States. To the
In
extent that respondents' breath samples came into the possession of California
authorities, it was for the limited purpose of providing raw data to the Intoxilyzer. n7
The evidence to be presented at trial was not the breath itself but rather the
Intoxilyzer results obtained from the breath samples. As the petitioner in Killian
wanted the agents' notes in order to impeach their final reports, respondents here
seek the breath samples in order to challenge incriminating tests results produced
with the Intoxilyzer.
14
Given
our precedents in this area, we cannot agree with the California Court of
Appeal that the State's failure to retain breath samples for respondents constitutes a
violation of the Federal Constitution. To begin with, California authorities in this
case did not destroy respondents' breath samples in a calculated effort to circumvent
the disclosure requirements established by Brady v. Maryland and its progeny. In
failing to preserve breath samples for respondents, the officers here were acting "in
good faith and in accord with their normal practice." Killian v. United States, supra,
at 242. The record contains no allegation of official animus towards respondents or
of a conscious effort to suppress exculpatory evidence.

15 importantly, California's policy of not preserving breath samples is without

More
constitutional defect. Whatever duty the Constitution imposes on the States to
preserve evidence, that duty must be limited to evidence that might be expected to
play a significant role in the suspect's defense. n8 To meet this standard of
constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, evidence
must both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means. Neither of these
conditions is met on the facts of this case.
16
Although
the preservation of breath samples might conceivably have contributed to
respondents' defenses, a dispassionate review of the Intoxilyzer and the California
testing procedures can only lead one to conclude that the chances are extremely low
that preserved samples would have been exculpatory. The accuracy of the
Intoxilyzer has been reviewed and certified by the California Department of Health.
n9 To protect suspects against machine malfunctions, the Department has developed
test procedures that include two independent measurements (which must be closely
correlated for the results to be admissible) bracketed by blank runs designed to
ensure that the machine is purged of alcohol traces from previous tests. See supra, at
481-482. In all but a tiny fraction of cases, preserved breath samples would simply
confirm the Intoxilyzer's determination that the defendant had a high level of bloodalcohol concentration at the time of the test. Once the Intoxilyzer indicated that
respondents were legally drunk, breath samples were much more likely to provide
inculpatory than exculpatory evidence. n10
17 if one were to assume that the Intoxilyzer results in this case were inaccurate
Even
and that breath samples might therefore have been exculpatory, it does not follow
that respondents were without alternative means of demonstrating their innocence.
Respondents and amici have identified only a limited number of ways in which an
Intoxilyzer might malfunction: faulty calibration, extraneous interference with
machine measurements, and operator error. See Brief for Respondents 32-34; Brief
for California Public Defender's Association et al. as Amici Curiae 25-40.
Respondents were perfectly capable of raising these issues without resort to
preserved breath samples. To protect against faulty calibration, California gives
drunken driving defendants the opportunity to inspect the machine used to test their
breath as well as that machine's weekly calibration results and the breath samples
used in the calibrations. See supra, at 481-482. Respondents could have utilized
these data to impeach the machine's reliability. As to improper measurements, the
parties have identified only two sources capable of interfering with test results: radio
waves and chemicals that appear in the blood of those who are dieting. For
defendants whose test results might have been affected by either of these factors, it
remains possible to introduce at trial evidence demonstrating that the defendant was
dieting at the time of the test or that the test was conducted near a source of radio

waves. Finally, as to operator error, the defendant retains the right to cross-examine
the law enforcement officer who administered the Intoxilyzer test, and to attempt to
raise doubts in the mind of the factfinder whether the test was properly
administered. n11
III
18 conclude, therefore, that the Due Process Clause of the Fourteenth Amendment
We
does not require that law enforcement agencies preserve breath samples in order to
introduce the results of breath-analysis tests at trial. n12 Accordingly, the judgment
of the California Court of Appeal is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
19
JUSTICE O'CONNOR, concurring.
20
21
Rules
concerning preservation of evidence are generally matters of state, not federal
constitutional, law. See United States v. Augenblick, 393 U.S. 348, 352-353 (1969).
The failure to preserve breath samples does not render a prosecution fundamentally
unfair, and thus cannot render breath-analysis tests inadmissible as evidence against
the accused. Id., at 356. Similarly, the failure to employ alternative methods of
testing blood-alcohol concentrations is of no due process concern, both because
persons are presumed to know their rights under the law and because the existence
of tests not used in no way affects the fundamental fairness of the convictions
actually obtained. I understand the Court to state no more than these well-settled
propositions. Accordingly, I join both its opinion and judgment.
-------------- Footnotes -------------22
23 Law enforcement agencies in California are obliged to use breath-analysis
n1
equipment that has been approved by the State's Department of Health. See 17 Cal.
Admin. Code 1221 (1976). The Department has approved a number of bloodalcohol testing devices employing a variety of technologies, see List of Instruments
and Related Accessories Approved for Breath Alcohol Analysis (Dec. 20, 1979),
reprinted in App. 238-247, of which the Omicron Intoxilyzer is the most popular
model, see Brief for Petitioner 6, n. 6.
24 Under California law, drunken driving suspects are given the choice of having
n2
their blood-alcohol concentration determined by either a blood test, a urine test, or a
breath test. Cal. Veh. Code Ann. 13353 (West 1971 and Supp. 1984). Suspects
who refuse to submit to any test are liable to have their driving licenses suspended.
Ibid.

25 The California Department of Health has approved a device, known as an

n3
Intoximeter Field Crimper-Indium Tube Encapsulation Kit (Kit), which officers can
use to preserve breath samples. App. 247. To use the Kit, a suspect must breathe
directly into an indium tube, which preserves samples in three separate chambers.
See 142 Cal. App. 3d 138, 142, 190 Cal. Rptr. 319, 321 (1983). The breath trapped
in each chamber can later be used to determine the suspect's blood-alcohol
concentration through the use of a laboratory instrument known as a Gas
Chromatograph Intoximeter, which has also been approved by the California
Department of Health. App. 242-243. Because the suspect must breathe directly into
the indium tube, the Kit cannot be used to preserve the same breath sample used in
an Intoxilyzer test. See, supra, at 481-482. Other devices, similar in function to the
Kit, can be attached to an Intoxilyzer and used to collect the air that the Intoxilyzer
purges, see Brief for Respondents 18-19, but none of these devices has yet received
approval from the California Department of Health, see Reply Brief for Petitioner 34.
26 The California Court of Appeal expressed some doubt whether respondents
n4
Trombetta and Cox were entitled to appeal their suppression orders and ultimately
ordered that their appeals be dismissed. 142 Cal. App. 3d, at 140, 143, 190 Cal.
Rptr., at 320, 323. The court, however, ruled on the merits of their claims and
thereby exercised jurisdiction over their appeals. Id., at 144, 190 Cal. Rptr., at 323.
As to Trombetta and Cox, the Court of Appeal decision was comparable to a
judgment affirming a suppression order, which is reviewable in this Court under 28
U. S. C. 1257(3). Cf., e. g., Michigan v. Clifford, 464 U.S. 287 (1984).
27 People v. Hitch involved another device used to measure blood-alcohol
n5
concentrations. With that device, a suspect's breath bubbles through a glass ampoule
containing special chemicals that change colors depending on the amount of alcohol
in the suspect's blood. 12 Cal. 3d, at 644, 527 P. 2d, at 363-364. In keeping with
California procedures, law enforcement officials in Hitch discarded the ampoule
after they had completed their testing, even though the ampoule might have been
saved for retesting by the defendant. Relying on this Court's decisions in Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 153-154
(1972), the California Supreme Court concluded that the Due Process Clause is
implicated when a State intentionally destroys evidence that might have proved
favorable to a criminal defendant. 12 Cal. 3d, at 645-650, 527 P. 2d, at 364-370. The
Hitch decision was noteworthy in that it extrapolated from Brady's disclosure
requirement an additional constitutional duty on the part of prosecutors to preserve
potentially exculpatory evidence. See Note, The Right to Independent Testing: A
New Hitch in the Preservation of Evidence Doctrine, 75 Colum. L. Rev. 1355, 13641368 (1975); cf. United States v. Bryant, 142 U. S. App. D. C. 132, 141, 439 F.2d
642, 651 (1971) (Wright, J.) (Government must make "'earnest efforts' to preserve
crucial materials and to find them once a discovery request is made").

28 a number of years, there was uncertainty whether the California courts would
For
extend the Hitch decision to the Intoxilyzer. In People v. Miller, 52 Cal. App. 3d
666, 125 Cal. Rptr. 341 (1975), a Court of Appeal panel refused to extend Hitch
because the Intoxilyzer does not reduce breath samples to a preservable form
comparable to the ampoules created with the device involved in Hitch. The Court of
Appeal in Trombetta declined to follow Miller, and reasoned that as long as there
were other methods of preserving specimens (such as the Indium Tube Kit, see n. 3,
supra), the State was obliged to preserve a breath sample equivalent to the one used
in the Intoxilyzer. 142 Cal. App. 3d, at 143-144, 190 Cal. Rptr., at 322-323.
29 In related cases arising under the Sixth and Fourteenth Amendments, we have
n6
recognized that criminal defendants are entitled to call witnesses on their own behalf
and to cross-examine witnesses who have testified on the government's behalf. See
Davis v. Alaska, 415 U.S. 308 (1974); Washington v. Texas, 388 U.S. 14 (1967).
30 We accept the California Court of Appeal's conclusion that the Intoxilyzer
n7
procedure brought respondents' breath samples into the possession of California
officials. The capacity to preserve breath samples is equivalent to the actual
possession of samples. See n. 5, supra.
31 In our prosecutorial disclosure cases, we have imposed a similar requirement of
n8
materiality, United States v. Agurs, 427 U.S. 97 (1976), and have rejected the notion
that a "prosecutor has a constitutional duty routinely to deliver his entire file to
defense counsel." Id., at 111; see also Moore v. Illinois, 408 U.S. 786, 795 (1972)
("We know of no constitutional requirement that the prosecution make a complete
and detailed accounting to the defense of all police investigatory work on a case").
32 The Intoxilyzer has also passed accuracy requirements established by the
n9
National Highway Traffic Safety Administration of the Department of
Transportation. See 38 Fed. Reg. 30459 (1973); A. Flores, Results of the First SemiAnnual Qualification Testing of Devices to Measure Breath Alcohol 10 (Dept. of
Transportation 1975).
33 The materiality of breath samples is directly related to the reliability of the
n10
Intoxilyzer itself. The degree to which preserved samples are material depends on
how reliable the Intoxilyzer is. This correlation suggests that a more direct
constitutional attack might be made on the sufficiency of the evidence underlying
the State's case. After all, if the Intoxilyzer were truly prone to erroneous readings,
then Intoxilyzer results without more might be insufficient to establish guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
34 Respondents could also have protected themselves from erroneous on-the-scene
n11
testing by electing to submit to urine or blood tests, see n. 2, supra, because the State
automatically would have preserved urine and blood samples for retesting by

respondents. Respondents, however, were not informed of the difference between

the various testing procedures when they were asked to select among the three
available methods of testing blood-alcohol concentrations. But see Cal. Veh. Code
Ann. 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed
that samples will be retained only in urine and blood tests). To the extent that this
and other access-to-evidence cases turn on the underlying fairness of governmental
procedures, it would be anomalous to permit the State to justify its actions by relying
on procedural alternatives that were available, but unknown to the defendant.
Similarly, it is irrelevant to our inquiry that California permits an accused drunken
driver to have a second blood-alcohol test conducted by independent experts, since
there is no evidence on this record that respondents were aware of this alternative.
35 State courts and legislatures, of course, remain free to adopt more rigorous
n12
safeguards governing the admissibility of scientific evidence than those imposed by
the Federal Constitution. See e. g., Lauderdale v. State, 548 P. 2d 376 (Alaska
1976); City of Lodi v. Hine, 107 Wis. 2d 118, 318 N. W. 2d 383 (1982).