Trombetta Motion – When the State Loses Your Evidence

A Trombetta motion (“T-motion”) is where your criminal defense attorney asks the judge to reduce or dismiss your criminal charges because:

1. evidence was gathered that was (or might be) material to the case and favorable to you, and
2. law enforcement destroyed or mishandled this evidence, thereby violating your due process rights to a fair trial under the U.S. Constitution’s Fourteenth Amendment.

Other names for Trombetta motions are:

• a motion to dismiss because of the spoilage of evidence and
• a Trombetta-Youngblood motion.

Examples of when to file Trombetta motions

• 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.

How the judge decides what to do

When deciding whether to grant or deny a Trombetta motion, the 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 prejudiced you.

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?
• 3. What is the spoliation of evidence?
• 4. What is a Trombetta advisement?
• 5. Related motions and crimes
• Additional resources

T-motions are typically filed during the pretrial process.

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

A Trombetta motion is where your criminal defense attorney asks the judge to dismiss your case or reduce your charges because law enforcement tampered with or destroyed evidence helpful to you.¹

If a judge grants your Trombetta motion, they will either drop your charge or lessen it (such as lowering a felony to a misdemeanor or a misdemeanor to an infraction).

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

When deciding whether to grant a Trombetta motion, the 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.

Was the missing evidence material and favorable to you?

A 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.

Did the government act in bad faith and prejudice you?

If a judge finds that the missing evidence was not favorable, then 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.

Per California Penal Code 135 PC, the destruction and concealment of evidence is a crime.

3. What is the spoliation of evidence?

“Spoliation” refers to destroying or concealing evidence. Per California Penal Code 135 PC, the destruction and concealment of evidence is a crime. Anyone can be prosecuted for this crime, including law enforcement officers who purposely destroy evidence.

Three elements must be met for a PC 135 conviction. These are:

1. knowledge that the evidence was going to be in fact used as evidence, and
2. the intention to destroy or conceal the evidence, and
3. the evidence was concealed or destroyed (at least to some extent).²

PC 135 applies any kind of evidence–including digital images and video recordings.³

A violation of Penal Code 135 is charged as a misdemeanor.⁴ Penalties include:

• 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 grant misdemeanor (or summary) probation.

4. What is a Trombetta advisement?

A Trombetta advisement is a three-part statement officers are supposed to give to you if you 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. 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.

Therefore, 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.⁶

5. Related motions and crimes

• Franks motion
• Serna motion
• Planting or tampering with evidence (PC 141)
• Offering false evidence (PC 132)
• Preparing false evidence (PC 134)

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.

Legal References: