Trombetta Motion – When the State Loses Your Evidence

A Trombetta motion (“T-motion”) is a legal motion that a criminal defense attorney will file with the court when:

1. evidence was gathered in a case that was (or might be) helpful to the defendant, and
2. the evidence was destroyed or mishandled by the police or prosecutor.

In the motion, a defense lawyer asks the judge to dismiss a case, or reduce charges, because evidence helpful to the defendant was tampered with or destroyed. This is also called a motion to dismiss because of the spoilage of evidence.

This is sometimes referred to as a Trombetta-Youngblood motion.

Examples of when a lawyer might file this document include:

• after John was arrested for the continuous sexual abuse of a child, his lawyer finds that the semen samples collected could not be tested because they were stored wrong.
• Beth gives the police her prescription for Xanax, after being pulled over for suspicion of DUI, but the police later throw it out.
• after Leslie is charged with robbery, her attorney discovers that the police lost fingerprints taken from the scene of the crime (that differed from those of her client).

Note that the mishandling of evidence, for which the motion addresses, is a violation of a defendant’s Constitutional right to due process.

Defendants can file a Trombetta motion in basically any type of criminal case, and they can be used to fight charges of

• a misdemeanor,
• a felony, or
• a wobbler.

A judge will either grant or deny a defendant’s motion. And, he will make this decision by following a two-step process that considers:

1. how favorable the missing evidence was to the defendant, and
2. if the government acted in bad faith.

“Spoliation” refers to when a person destroys or conceals evidence. Per California Penal Code 135 PC, this destruction and concealment of evidence is a crime.

A violation of Penal Code 135 is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is the legal definition of a Trombetta-Youngblood motion?
• 2. How does a judge rule on a T-motion?
  • 2.1. Was the missing evidence favorable to the defendant?
  • 2.2. Did the government act in bad faith?
• 3. What is the spoliation of evidence?
• 4. What are the penalties if a person destroys or conceals evidence?
• 5. What is a Trombetta advisement?

1. What is the legal definition of a Trombetta-Youngblood motion?

A Trombetta motion is a legal motion that a criminal defense attorney will file with the court when:

1. evidence was gathered in a case that was helpful to the defendant, and
2. the evidence was destroyed or mishandled.

In the motion, a defense lawyer asks the judge to dismiss a case, or reduce charges, because evidence helpful to the defendant was

• tampered with or
• destroyed.

A T-motion is sometimes referred to as a Trombetta-Youngblood motion.¹

Note that the mishandling of evidence, because of which the motion is filed, is a violation of a defendant’s Constitutional right to due process.

A Trombetta motion can be filed in any type of criminal case, including one (for example) that involves such charges as:

• murder, per PC 187,
• rape, per PC 261, and
• assault with a deadly weapon, PC 245(a)(1).

2. How does a judge rule on a T-motion?

A judge will either grant or deny an accused’s Trombetta motion. He will make this decision by following a two-step process that considers:

1. how favorable the missing evidence was to the defendant, and
2. if the government acted in bad faith.

2.1 Was the missing evidence favorable to the defendant?

The first step in a judge analyzing a T-motion is for him to ask how exculpatory or favorable the missing evidence was to the defendant.

A judge will likely grant a motion if he finds that the evidence that was destroyed or tampered with was advantageous to the accused.

Please note that “exculpatory” evidence is evidence that clearly shows a party’s innocence. If this evidence gets destroyed, a judge will typically grant the motion without an exception.

“Favorable” evidence means items that help the accused support his defense. If this evidence gets lost or mishandled, judges are likely to grant a Trombetta motion.

In any event, the exculpatory or favorable evidence at issue must:

• have held this value before the evidence was lost or destroyed, and
• be of such a type that an accused would not be able to get similar evidence by any other efforts.

2.2. Did the government act in bad faith?

If a judge finds that the missing evidence was not favorable, then he can still grant the motion if he determines that the government acted in bad faith.

“Bad faith” means that the government intentionally destroyed or mishandled evidence.

Note that the negligent handling of evidence will not rise to the level of bad faith. This rule also applies to the situation where evidence was lost or mishandled by the government’s accident.

So, for example, consider a person that was arrested for the rape of his ex-girlfriend. Following the incident, a semen sample was taken from the woman. But the sample, through an accident at the lab, was not preserved correctly. As a result, the sample could not get tested. This scenario would not be considered “bad faith.” This is because the government did not intentionally damage the semen sample. It was only rendered untestable because of an accident.

3. What is the spoliation of evidence?

“Spoliation” refers to when a person destroys or conceals evidence. Per California Penal Code 135 PC, this destruction and concealment of evidence is a crime.

Two conditions must be met in order for a defendant to be guilty under PC 135. These are:

1. the accused knew that the evidence was going to be in fact used as evidence, and
2. he intended to destroy or conceal the evidence.²

A person can be guilty of PC 135 by destroying or concealing pretty much any kind of evidence–including digital images and video recordings.³

Please also note that a defendant must have been successful in the spoliation of evidence (at least to some extent) in order to be convicted of this crime.

4. What are the penalties if a person destroys or conceals evidence?

A violation of Penal Code 135 is charged as a misdemeanor.⁴ The crime is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.⁵

Note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

5. What is a Trombetta advisement?

A Trombetta advisement is a three-part statement officers are supposed to give to people who elect to take an evidentiary breath test after a DUI arrest:

1. “The breath testing equipment does NOT retain any breath sample for later analysis by you or anyone else.”
2. “If you want a sample retained, you may provide a blood or urine sample that will be retained at no cost to you. If you do so, the blood or urine sample may be tested for alcoholic or drug content by either party in a criminal prosecution.”
3. “Do you wish to provide an additional sample?” (At this point, the defendant can elect to give a blood or urine sample as well.)

Many DUI defendants opt to provide a breath test rather than a blood test since it is less invasive. Though this makes it difficult for defendants to later contest the breathalyzer results since police do not save the breathalyzer sample; in other words, police destroy the breath sample as evidence.

Therefore, the purpose of Trombetta advisements is to inform DUI defendants that their breath samples are destroyed and to give them an opportunity to provide a blood or urine sample, which is saved and can therefore be retested.⁶

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