Pismo Beach DUI evidence hinges on breath-test procedure

Judge suppresses Breathalyzer results because no alternatives were offered; DA appeals ruling

skahmann@thetribunenews.comApril 28, 2013 

A man suspected of drunken driving in Pismo Beach could beat the charges because the arresting officer failed to completely advise him about an alternative to the Breathalyzer test. But while a judge moved to suppress the man’s Breathalyzer results, the District Attorney’s Office argues that the officer’s violation of state law does not warrant excluding evidence.

In a rare move, Judge John Trice of San Luis Obispo Superior Court moved to suppress Breathalyzer evidence used to charge Robert Scott Sproston on the basis that the arresting officer, William Garrett, failed to notify Sproston that he could take either a blood or urine test instead, as well as failed to explain that blood and urine tests can be preserved. 

The Sproston case has yet to go to trial, and now that the DA’s most damaging evidence has been suppressed, a pretrial appeal has been issued that would move the case to a higher court.

Established in 1984, the Trombetta Advisement requires officers to notify people suspected of DUI that there are alternatives to the Breathalyzer. Though breath-based devices are commonly used as a basis for DUI convictions, most of them don’t preserve the suspect’s breath. The advisement is meant to make suspects aware of alternatives that allow evidence to be preserved. 

Sproston’s defense attorney Darryl Genis believes police officers commonly fail to issue the advisement because Breathalyzer readings are more likely to lead to convictions.

“There’s no doubt in my mind that police have been trained to eliminate urine from the advisement or from saving samples,” Genis said. “Police gather evidence to convict and no more.”

Judges commonly allow Breathalyzer readings to be used as evidence. But as with Miranda rights, an arresting officer’s failure to issue the Trombetta Advisement can result in the evidence being deemed inadmissible, Genis said. 

The night of his arrest, the Breathalyzer showed Sproston’s blood alcohol level was 0.22. The legal limit is 0.08. Chief Deputy District Attorney Jarrett Gran said Sproston’s guilt is clear. 

“The chain of evidence is unbroken,” Gran said. “The evidence should be admissible.”

In a motion asking Trice to reconsider, the District Attorney’s Office argued that the Trombetta Advisement is state law, and that the U.S. Supreme Court’s exclusionary rule — which holds that evidence is inadmissible when improperly obtained — only applies to violations of constitutional rights. Furthermore, California law specifically states that excluding evidence is not a way to deter police misconduct, the motion states.

Pismo Beach police are trained to provide the alternatives when applicable, Cmdr. Jake Miller said. Despite this, it’s not uncommon for officers to mistakenly omit the advisement when making an arrest, Genis said.

Because municipal and superior courts in California are merged, the appeal will most likely be heard by judges whom Trice has sat with. If the appellate court affirms the lower-court decision, the DA could either drop the charges or take the case to a higher appellate court.  

If the DA chooses to go to trial without the Breathalyzer evidence and loses, the precedent could compromise earlier DUI convictions in cases where the Trombetta Advisement was not read. But this would 

only happen if either the DA chooses to pursue those cases, or if prior DUI offenders know about the precedent, Genis said.

“That leaves the people who’ve been convicted to know about the precedent and how the law applies to their cases,” Genis said. “The likelihood of that coming into alignment for most people is very low.”

Though a motion to reconsider the evidence was filed by the DA’s Office almost simultaneously with the notice of appeal, the motion cannot be heard by the lower court once the case goes to the appellate court.  

Both the Pismo Beach Police Department and the DA’s Office declined to comment further on the case.

A hearing is scheduled today in Trice’s courtroom for the prosecution’s motion to reconsider.


The Tribune is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service