The Defendant, by and through counsel undersigned, pursuant to Rule 15.

1 of the Arizona
Rules of Criminal Procedure, 17 A.R.S., and the decisions of the United States Supreme Court in
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed 2d 215 (1963), hereby requests that the
Court order the State to furnish the Defendant with the following information forthwith:
If an intoxilyzer was used in this case, then the defense is requesting the following:
1. Subject test log for the period beginning 30 days before the arrest date and ending 30
days after the arrest date.
2. Day-to-day calibration checks for the period beginning 30 days before the arrest date
and ending 30 days after the arrest date.
3. Error and maintenance warning log for the period beginning 90 days prior to the arrest
date and ending 90 days after the arrest date.
4. Standard calibration records and standard quality assurance records.
5. The date of manufacture and date of delivery of the Intoxilyzer machine used in this
case.
6. Copies of all printed tests and research data which were supplied by the manufacturer to
law enforcement and/or the State concerning the Intoxilyzer machine used in this case.
7. Any information in the possession and/or control of the State which would indicate that
the type of Intoxilyzer machine employed in this case has ever malfunctioned.
8. A complete text of copies of any directive, notice or bulletin issued to using agencies by
either the manufacturer of the machine in question or the State Department of Health Services
(or any Arizona agency associated with the Intoxilyzer), concerning the operation of the type of
Intoxilyzer used in this case and/or any problems experienced in connection with the use of said
Intoxilyzer.
9. A copy of the instruction manual, together with all supplements thereto and warranties
which were issued by the manufacturer of the Intoxilyzer used in this case or by any
governmental agency that relates to the use of the Intoxilyzer machine used in this case.
10. A list of known samples used to check the accuracy of the Intoxilyzer actually used in this
case together with the identity and address of the person who prepared the known samples.
11. All operators permits issued to the person who actually operated the Intoxilyzer used in this
case.
12. Logs showing any quality assurance tests of the machine for a period of 180 days prior to
and 180 days subsequent to the administration of the Intoxilyzer in this case, and any
complaints received by the agency operating the Intoxilyzer or problems of any kind with the
machine occurring at any time within the last three years.
13. Any materials within the possession and/or control of the prosecution, including any such
materials in the possession of the law enforcement agency documenting or describing in any
way the correct and/or standard method of administering field sobriety tests (i.e., the red
book), and any such documentation which describes in any way a correct and/or standard
method of evaluating someoneOL 61 \f "WP TypographicSymbols" \s 12s performance on field
sobriety tests.
14. A duplicate original of any audio, video, or other recording made during the stop and/or
investigation of the Defendant in this case, including 911 recordings.
15. The names of any experts the State intends to call in this case, together with the results of
any research or experiments of any kind which they have conducted in connection with their
proposed testimony, and the following:
A) A list of any and all publications, treatises and other written materials which will be relied
upon by the State=s expert witness(es).
B) A list and description of any and all scientific experiments and results of the same (controlled
or uncontrolled), about which the States expert(s) will testify.
C) Whether or not any expert witness(es) called by the State will express an opinion concerning
the blood alcohol level at which all individuals are impaired in the ability to safely operate a
motor vehicle, and what that opinion will be, together with:1)The facts upon which any opinion
will be based.
2) The date upon which the expert first expressed that opinion
Whether or not the expert ever testified to a different opinion, and what that opinion was.
16. A list of all prior bad acts of the Defendant which the State intends to introduce in evidence
in this case.
17. A copy of any document which the State intends to introduce in this case, including any
document which the State intends to introduce and/or rely upon for purposes of establishing
foundation, authentication or attestation.
18. A copy of the daily log of activities prepared and submitted by the law enforcement
officer(s) involved in this case for the day in which the Defendant was investigated/cited for
DUI and/or alcohol related offenses.
19. Copies of all logs and other memoranda in the possession of the officer conducting field
sobriety tests in this case, if any, which would reflect his/her training on the horizontal gaze
nystagmus test. This request includes, but is not limited to, any logs he/she kept of tests that
were administered for training purposes.
20. Copies of all reports and/or handwritten notes filled out by every law enforcement officer
who participated in any way in the investigation of the Defendant in this case.
21. Any material in the possession and/or control of the State which would tend to exculpate
the Defendant and/or mitigate the punishment.
The grounds for this request are set forth in the following Memorandum of Points and
Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS:
The Defendant stands accused of the crimes of A.R.S. '28-1381A1 and '28-1381A2. The
charges relate to conduct which allegedly occurred within Pima County, Arizona. The State has
disclosed the fact that after the detention of the Defendant by law enforcement officials, a field
sobriety tests (HGN, Walk and Turn, One Leg Stand) were administered by the officer(s) to the
Defendant. The State has not disclosed any information that would suggest that any
standardized method exists for the administration and/or evaluation of a Defendants
performance on field sobriety tests. Nor has the State disclosed its intention to call any expert
to establish in any way just what it is that these field sobriety tests measure and/or what an
appropriate manner would be to evaluate a persons performance on these tests. The State has
also disclosed its intention to introduce the results of an Intoxilyzer test allegedly administered
to the Defendant by the officer on the date of the incident.II. LAW/ARGUMENT:
A Defendant enjoys broad discovery privileges under both Arizona Rules of Criminal
Procedure and the United States Constitution. Rule 15.1 of the Arizona Rules of Criminal
Procedure, 17 A.R.S., establishes a Defendants right to obtain the names and addresses of
witnesses to be called against her; a list of experts to be called against her; a description of all
tangible objects to be introduced against her and any other information which would tend to
negate the defendant’s guilt or reduce her punishment. Rule 15.1(e) further provides that upon
motion of the defendant demonstrating a substantial need for material or information not
otherwise covered by Rule 15.1(a), and a further showing that the defendant is unable to
obtain the information without undue hardship by any other means, the Court may order the
discovery of this information. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215
(1963), the United States Supreme Court defined a defendant=s right to discovery under the
United States Constitution. The Brady court held that the State was obligated to turn over any
information in its possession and/or control which would, in any way, tend to exculpate the
defendant and/or mitigate her punishment. In United States v. Agurs, 427 U.S. 97, 96 S.Ct.
2392, 49 L.Ed 2d 342 (1976), the United States Supreme Court expanded upon the Brady
holding. In Agurs, the Court held that where a defendant makes a direct request for specific
material information, the State is seldom, if ever, justified in refusing the request. United
States v. Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2399. Given the authorities described
above, the Defendant contends that all of the information requested herein is clearly
discoverable. The Defendant will therefore submit only a brief discussion of each of the
requested items. Requested items 1 through 10 all relate to the Intoxilyzer employed in
this case. Without information concerning the date of manufacture of the particular machine
used, and any brochures, manuals or warranties supplied by the manufacturer for the correct
operation of the machine, probative cross-examination cannot occur. Information requested in
numbers 6 and 7 concerning test data about the machine and any information indicating that
the machine has malfunctioned is clearly discoverable and probative of the question of the
reliability of the test employed in this case. Similarly, items 8 and 9 are essential foundational
requirements if the Defendant is to be able to explore the reliability of the tests performed in
this case. A.R.S. Sec. 28-1323 establishes that the Department of Health Services shall
promulgate regulations for the administration of chemical breath tests. Those regulations may
be found in R9-14-401 et seq. In R9-14-408, the Department of Health Services establishes
specific regulations concerning the training an operator must receive before he or she may be
issued a valid operators permit. A.R.S. '28-1323 establishes that a foundational requirement for
the introduction of an Intoxilyzer reading is the fact that the operator who conducted the test
possesses a valid permit. The only way that defense counsel can ascertain if the operator does
in fact hold a valid permit is for the State to produce the same. The information requested in
item 12 is clearly discoverable. An essential foundational requirement to the introduction of an
Intoxilyzer test is a demonstration that the particular machine in question was in proper
operating condition. A.R.S. '28-1323(A)(5). Any information which would demonstrate in any
way that the machine was not in proper operating condition would clearly be exculpatory
evidence and the State would be obligated to disclose under Brady v. Maryland, supra. Hence
all the information requested in item 12 is clearly discoverable.
The materials requested in item 13 relate to the administration of field sobriety tests in
this case. As described above, the State has indicated its intention to introduce the fact that
field sobriety tests were administered in this case, and the Defendants performance
thereon. However, the State has not disclosed any basis upon which the jury might properly
consider these field sobriety tests. What exactly are these field sobriety tests supposed to
test? Is there any neurological basis to believe that these field sobriety tests measure the
effects of intoxication as opposed to nervousness, fatigue or any other physical disability? Is
there any information to demonstrate that the field sobriety tests administered in this case are
in fact part of a standard battery or are they simply tests that the individual on the scene made
up? Is there any standardized method of evaluating a persons performance on these tests?
Undoubtedly, at trial, the officer will attempt to answer many of the questions described
above in his direct testimony.
Officers routinely describe the training 64 \f "WP TypographicSymbols" \s 12 they
receive to conduct field sobriety tests. Clearly, this is a relevant area of inquiry on cross-
examination. Defense counsel therefore requests that all of the information described in item
13 be disclosed to Defendant forthwith. If, in fact, there is no standardized method for
administering and/or evaluating field sobriety tests, then the State should be required to say so.
The information requested in items 14 through 21 is self-explanatory. All such
information is clearly discoverable pursuant to Rule 15.1 of the Arizona Rules of Criminal
Procedure and Defendant does not contemplate serious objection by the State. For all of the
foregoing reasons, the Defendant respectfully requests that the Court order the discovery of all
requested information herein. For all of the foregoing reasons, the Defendant respectfully
requests that the Court order the discovery of all requested information herein.

RESPECTFULLY SUBMITTED this 23rd day of July, 2018.

LAW OFFICES OF
THOMAS E. HIGGINS, P.L.L.C.

______________________________ By:
Thomas E. Higgins
Attorney for Ms. Massarat
Thank you,
Kalina Martinez
Legal Assistant for Thomas E. Higgins & Maggie Higgins Schmidt

Law Offices of Thomas E. Higgins, P.L.L.C.

The Higgins Law Group
325 West Franklin Street
Tucson, Arizona 85701
(520) 624-8663