On June 29, 2009 the Court of Appeals of Georgia affirmed the dismissal of criminal charges after the Gwinnett Police intentionally destroyed evidence that could have helped prove the Defendant's innocence.
The name of the case is Georgia v. Miller, and it has some interesting impications for Georgia DUI cases, and some relevant references to famous nationally known DUI cases.
Setting the stage for the appeal. How the Gwinnett Police destroyed potentially exculpatory evidence.
On January 29, 2008, however, the Gwinnett County Police Department submitted an application pursuant to OCGA § 17-5-54 for destruction of multiple items of per-sonal property in the custody of the department in a number of cases. One of the listed cases was the traffic case against Miller, and one of the items of personal property was his cell phone. As required by OCGA § 17-5-54(a), the application (and an attached, sworn verification of the chief of police) stated that the items of property to be destroyed had been "unclaimed for more than ninety (90) days after their seizure, or following the final conviction in the case of property used as evidence, and such items [were] no longer needed in a criminal investigation or for evidentiary purposes." Insofar as concerned Miller's cell phone, the above repre-sentations were false. Nonetheless, in reliance on them, the superior court signed an order on February 4, 2008, authorizing destruction of the property. And the cell phone was destroyed.
On February 20, 2008, Miller was indicted on one count of robbery and two counts each of battery and simple battery. At Miller's arraignment on March 19, 2008, de-fense counsel informed the prosecuting attorney about the cell phone. Unaware of its destruction, defense counsel obtained the prosecutor's consent to release of the cell phone for use by the defense. After learning of the cell phone's destruc-tion, the defense filed a motion to dismiss the indictment based on the state's de-struction of exculpatory evidence.
The DUI connection and the analogy to destruction of a breath sample.
The defendants in Trombetta were charged with driving under the influence with unlawful blood-alcohol concentrations as shown by the results of Intoxilyzer tests to which they had submitted. The defendants filed motions to suppress on the ground that the arresting officers' failure to preserve samples of the defendants' breath deprived them of the opportunity to impeach the breath test results. The California Court of Appeal reversed the trial court's denial of the defendants' motions to suppress, concluding that their due process rights had been violated by the state's failure to preserve the evidence.
The Court's conclusion.
Here, the cell phone was erroneously seized as evidence of a robbery and battery allegedly committed by Miller on October 5, 2007. Because of the destruction of the cell phone, the trial court dismissed those charges against Miller, in essence because the cell phone contained information that could have led to Miller's acquisition of evidence that could have exculpated him. Under these circumstances, the cell phone is properly characterized as type two or three Youngblood evidence. The trial court found that the police had engaged in conscious wrongdoing and thus acted in bad faith in destroying the cell phone, based on the arresting officer's failure to testify in combination with other facts such as those showing that the police failed to return the cell phone to Miller even though they were obviously aware of his temporary abode, and that they made false statements under oath in ob-taining permission to destroy the phone. This was a factual determination by the court that we do not find to be clearly erroneous. And the evidence supports the court's finding that Miller could not obtain the information stored in the cell phone by other reasonably available means. The trial court was thus authorized to find a denial of Miller's right to due process under the federal constitution and to order dismissal of the criminal charges because of the state's destruction of the cell phone.
This type of thing theoretically happens in every DUI breath test case. It is rare or non-existent in modern breath testing programs to preserve a sample of the Defendant's breath. Although many states have a right to get an independent blood test, it often times is impossible to get or takes so long to arrange as to render it useless.
This case is a step in the right direction.
