Friday, October 30, 2020
A prosecutor has been reprimanded by consent for a Brady violation by the Arizona Presiding Disciplinary Judge.
The issue involved information that a prosecution witness was under the influence of alcohol
NJ and a friend appeared for trial on October 10, 2019. Respondent smelled alcohol but could not identify if the odor came from NJ or his friend. Det. Sapp performed a horizontal gaze nystagmus (HGN) test on NJ and observed 3 of 6 cues. One of NJ’s eyes was non-responsive due to a prior injury, meaning that Det. Sapp observed 3 of 3 cues in NJ’s functioning eye.
A portable breath test was performed on NJ between 8:30 and 8:45 A.M. Sometime between 8:45 and 9:00 A.M., Det. Sapp informed Respondent that NJ’s PBT resulted in a BAC of .226%.
Respondent believed the BAC could have been a holdover from consuming alcohol the day before because NJ did not display any of the outward signs or symptoms typically associated with a blood alcohol concentration of that level, as he had when he appeared on October 8. Respondent also believed that the PBT result could have been inaccurate, as PBTs are not as reliable as standard breath test devices regulated by A.R.S. 13-1323.
The prosecutor did some research and consulted with a superior.
Respondent met with NJ again between 10:30 and 10:45 A.M. Respondent could no longer smell alcohol and observed NJ to be alert and responsive to questions. Respondent believed that while NJ may have had alcohol in his system, he might not be intoxicated.
NJ told Respondent that he did not have anything to drink that day and maintained the same even after being confronted with the PBT results.
Respondent called NJ to testify.
On cross examination, Defense counsel asked NJ if he had anything to drink in the last 24 hours. NJ answered “no.”
The prosecutor did not disclose the test; the defendant was convicted of a lesser offense
The defendant was convicted of the lesser-included offense of misdemeanor assault. Defense counsel learned of the PBT/HGN results after trial and filed a motion to dismiss the matter with prejudice.
The Court held an evidentiary hearing on the motion to dismiss on October 31, 2019, and found Respondent had violated his Brady duty to disclose. The matter was dismissed with prejudice as a sanction.
The reprimand also has a one-year probation condition. (Mike Frisch)