State v. Watson , 48 Ohio App. 2d 110 ( 1975 )

I concur in the judgment but conclude that the California case of People v. Hitch does not turn on the California statute, but on the issue of due process. In the rehearing, at 527 P.2d 361, the opinion in 520 P.2d 974 was vacated. I conclude that the rule in California is that there is now a duty to preserve the ampoule (the decision did not operate retrospectively). If the prosecution in California can show they attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the test ampoule, sanctions will not be imposed. If the prosecution meets the burden, then the results of the breathalyzer test shall be admissible in evidence, even though the ampoules and their contents have been lost. Due process does not require, if the prosecution fails in its burden, for a dismissal of the case but only in excluding the results of the test.