Trombetta Motion – When the State Loses Your Evidence

A Trombetta motion asks the judge to reduce or dismiss your criminal charges in California because law enforcement destroyed or mishandled material evidence that was favorable to you, thereby violating your 14th Amendment due process rights to a fair trial.

Other names for Trombetta motions are:

• T-motions,
• Trombetta-Youngblood motions, and
• Motions to dismiss because of the spoilage of evidence.

In this article, our California criminal defense attorneys discuss the following topics re. Trombetta motions.

• 1. Examples
• 2. How Judges Rule
• 3. Spoliation of Evidence
• 4. Trombetta Advisements
• 5. Related Topics
• Additional Resources

1. Examples

Scenarios where a defendant in California should file a Trombetta motion include the following:

• 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.
• During a DUI stop, Beth gives the police her prescription for Xanax, 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 Leslie’s.¹

2. How Judges Rule

When deciding whether to grant a Trombetta motion, California judge follows a two-step process that considers:

1. how material and favorable the missing evidence was to you, and
2. if the government acted in bad faith, and if not having the evidence prejudices you.

1) Was the missing evidence material and favorable to you?

“Material” evidence substantially impacts the resolution of the legal matter. An example of material evidence in a murder case would be blood test results from the scene.

Meanwhile, “favorable” evidence means items that help you support your defense. An example of favorable evidence in a burglary case would be hair samples taken from the crime scene that suggest someone other than you were there.

Note that evidence that is more than favorable and clearly shows your innocence is called “exculpatory.” An example of exculpatory evidence in a rape case would be surveillance video of someone other than you assaulting the victim.

For evidence to be favorable or exculpatory for the purpose of a Trombetta motion, the evidence must:

1. have held this value before the evidence was lost, tampered with, or destroyed and
2. be of such a type that you would not be able to get similar evidence by any other efforts.

A California judge will likely reduce or dismiss a charge per a Trombetta motion if they find that the evidence at issue was both

• material and
• favorable or exculpatory.

This is true even if the government lost the evidence by accident and not in bad faith.

2) Did the government act in bad faith and prejudice you?

If a California judge finds that the missing evidence was not favorable, they can still grant the motion if they determine that the government acted in bad faith. “Bad faith” means that the government intentionally destroyed or mishandled evidence.

Note that the negligent or accident mishandling of evidence does not rise to the level of bad faith.

Example: Sam was arrested for the rape of his ex-girlfriend. Following the incident, a semen sample was taken from the woman. Through an accident at the lab, the sample was not preserved correctly and could not get tested. This scenario would not be considered “bad faith” because the sample became untestable because of an accident.

Meanwhile, you are prejudiced by the loss of evidence if it substantially hinders your capacity to defend yourself meaningfully. An example is contaminated blood results in a DUI case: Now that the key evidence is unusable, your ability to fight the DUI charge is severely impaired.

A judge will likely reduce or dismiss your charge per a Trombetta motion if they find that:

• the government acted in bad faith, and
• you are prejudiced by not having access to the evidence the government lost or destroyed.

3. Spoliation of Evidence

“Spoliation” refers to destroying or concealing evidence, which includes physical evidence as well as digital images and video recordings. Spoliation is a crime no matter who does it, including police.

For someone to be convicted of spoliation of evidence under California Penal Code 135 PC, prosecutors must prove the following three elements beyond a reasonable doubt:

1. knowledge that the evidence was going to be used as evidence, and
2. the intention to destroy or conceal the evidence, and
3. the concealment or destruction of the evidence (at least to some extent).²

Spoliation of evidence is a misdemeanor, carrying up to six months in jail and/or $1,000 in fines.³ Instead of jail time, a judge may grant misdemeanor (or summary) probation.

Note that you can still win a Trombetta motion even if the police never get convicted of spoliation.

4. Trombetta Advisements

If you are arrested for DUI in California and elect to take an evidentiary breath test, the police must give you a  Trombetta advisement. This three-part statement says:

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. However, this makes it difficult to later contest your breathalyzer results since police do not save your breathalyzer sample; in other words, police destroy your breath sample as evidence.

In short, the purpose of Trombetta advisements is to inform you that your breath samples are destroyed and to give you an opportunity to provide a blood or urine sample, which is saved and can therefore be retested.⁴

5. Related Topics

• Franks motion – a motion challenging the truth of the information used to justify a search warrant.
• Serna motion – a motion asking to dismiss criminal charges due to denial of speedy prosecution/trial.
• Planting or tampering with evidence (141 PC) – planting or tampering with evidence with the purpose of getting someone charged with a crime is a misdemeanor carrying up to six months in jail and/or fines of up to $1,000.
• Offering false evidence (132 PC) – knowingly offering false documents into evidence in a legal proceeding, trial, inquiry, or investigation is a felony carrying 16 months, 2 years, or 3 years in jail and/or up to $10,000.
• Preparing false evidence (134 PC) – preparing false evidence with the intent to use it fraudulently in a legal proceeding is a felony carrying 16 months, 2 years, or 3 years in jail and/or up to $10,000.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Probable Cause, Reasonable Suspicion, or Mere Speculation: Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases – Washburn Law Journal.
• Here Today, Gone Tomorrow – Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent Exculpatory Value – Cleveland State Law Review.
• No Wrong without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence – Oklahoma City University Law Review.
• Spoliation of Evidence in California – University of Missouri-Kansas City Law Review.
• Linking the Culpability and Circumstantial Evidence Requirements for the Spoliation Inference – Duke Law Journal.

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