What Happened

At approximately 4:30 a.m. on September 16, 2023, a traffic operations specialist monitoring the Loop 303 freeway in Maricopa County received a wrong-way detection alarm. Through live camera footage, he tracked a white pickup truck that had entered the highway through an exit ramp and was traveling southbound in the northbound lanes. Two separate 911 callers also reported the wrong-way driver. One described nearly colliding with the truck, forcing both the caller and another driver to swerve.

An Arizona Department of Public Safety trooper located the truck, observed it swerving and weaving, and initiated a traffic stop at 4:35 a.m. The driver — Edgar Carlos Reyes — displayed classic signs of impairment: bloodshot eyes, slurred speech, and an unsteady gait. He offered his passport in lieu of a driver’s license. Two breath tests taken six minutes apart showed a BAC of 0.148% and 0.149% — nearly double the legal limit of 0.08% under A.R.S. § 28-1381.

The State charged Reyes with two felony counts of aggravated DUI based on wrong-way driving under A.R.S. § 28-1383(A)(5). A Maricopa County jury found him guilty on both counts, and the court sentenced him to four months’ imprisonment, served concurrently.

The Legal Dispute: Late Disclosure of 911 Recordings

NOTICE: This case is a memorandum decision which means it is not for official publication under Arizona Supreme Court Rule111(c). The decision is not precedential and may be cited only as authorized by rule. Although not official precedent it does give an indication of what the court of appeals thinks about these issues.

The central issue on appeal was not the DUI itself, but whether the trial court erred by admitting the two 911 call recordings after the State disclosed them late.

Early in the case, Reyes moved for preservation and disclosure of the 911 recordings under Arizona Rule of Criminal Procedure 15.1(e). The court granted the motion, and under Rule 15.1(e)(1)(B), the State had 30 days from the written request — a March 7, 2024 deadline — to produce any recordings that existed. The State requested the recordings from the Arizona Department of Public Safety in February and followed up in March and April. It finally received the recordings on May 5 and disclosed them to the defense three days later: 12 days before the May 20 trial date and more than two months past the deadline.

How the Court Analyzed Late Disclosure Under Arizona Law

Arizona courts do not automatically exclude evidence because it was disclosed late. Under Ariz. R. Crim. P. 15.7(c), a trial court must weigh four factors when determining whether and what sanction to impose for an untimely disclosure:

1. The significance of the information not timely disclosed — Was it foundational to the case or merely corroborative?
2. The violation’s impact on the overall administration of the case — Did it disrupt the trial schedule or unfairly change the defense’s strategy?
3. The sanction’s impact on the party imposing the violation — Would excluding the evidence be disproportionate to the harm?
4. The state of the proceedings when disclosure ultimately occurred — How close to trial, and was there still time to respond?

The trial court found that the State was dependent on another agency — the Arizona DPS — to release the recordings and had acted with due diligence throughout. It disclosed the recordings within three days of receiving them. As for prejudice to Reyes, the court noted that he had 12 days before trial to locate the callers and had not demonstrated any attempt to do so. Nor did the late disclosure change how the defense was proceeding with the case.

Why Krone and Jimenez Did Not Help the Defendant

Reyes relied on two cases where Arizona courts found late disclosure warranted preclusion of evidence. The Court of Appeals distinguished both:

State v. Krone (1995)

The State disclosed a video reenactment of bite-mark evidence — described by the Arizona Supreme Court as “powerful and effective” — only three days before trial. That evidence was the linchpin connecting the defendant to the crime. Late disclosure of that kind of crucial, central evidence justified a new trial.

Jimenez v. Chavez (App. 2014)

The State disclosed critical DNA evidence just one day before trial — and only after the trial had already begun. DNA is frequently the cornerstone of a prosecutor’s case, and the court found preclusion was the appropriate sanction.

In Reyes, the 911 recordings were neither foundational nor critical to the State’s case. The prosecution had already presented video footage of the truck entering the exit ramp, live testimony from the traffic specialist who tracked it on camera, and the trooper’s firsthand observations of Reyes’ impairment and BAC results. The 911 calls were corroborative at best. As the court noted, preclusion of evidence “is rarely an appropriate sanction for a discovery violation” under State v. Naranjo, 234 Ariz. 233 (2014).

The Due Process Argument: Fundamental Error Review

Because Reyes did not raise his Fourteenth Amendment due process argument at the trial level, the Court of Appeals reviewed it only for fundamental error — the most defendant-unfavorable standard of review in Arizona. To prevail, Reyes needed to show that the error went to the foundation of the case, stripped him of a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. See State v. Escalante, 245 Ariz. 135 (2018).

The court found no error at all, much less fundamental error. The State had acted diligently; the evidence was cumulative; and the defense had nearly two weeks to investigate the callers before trial began.

What This Case Means for Arizona DUI Defendants

Several practical lessons emerge from State v. Reyes for anyone facing a DUI charge in Arizona, particularly an aggravated DUI:

Corroborative evidence is harder to exclude

If the State has video, officer testimony, and BAC results already locking in the core of its case, a court is unlikely to preclude additional evidence — like 911 recordings — even if disclosed late. The battle over late disclosure is most winnable when the untimely evidence is the cornerstone of the prosecution’s theory.

Failing to preserve objections costs you on appeal

Reyes’ due process argument failed in large part because his attorneys did not raise it at the trial level. Arizona’s fundamental error doctrine makes it extremely difficult to win on an argument you did not make below. Thorough, contemporaneous objections matter.

Wrong-way DUI is treated as a felony in Arizona

Under A.R.S. § 28-1383(A)(5), driving the wrong way on a highway while impaired is an aggravated (Class 4 felony) DUI charge — not a misdemeanor. The consequences include mandatory prison time, loss of driving privileges, and a felony record. An experienced Arizona DUI attorney can assess whether the evidence — including how the wrong-way driving was identified, documented, and disclosed — was handled properly.

Diligent defense begins immediately

The court’s finding that Reyes had not demonstrated any attempt to contact the 911 callers during the 12 days he had them available undercut his prejudice argument. When new evidence surfaces — even late — the defense team must act quickly and document every effort made.

Legal Disclaimer: This blog post is provided for informational and educational purposes only and does not constitute legal advice. The discussion of State v. Reyes and related Arizona statutes is intended to explain published court decisions, not to predict outcomes in any specific case. Reading this post does not create an attorney-client relationship with Gordon Thompson or his firm. Every DUI case is fact-specific; if you have been charged with a DUI or criminal offense in Arizona, you should consult a licensed Arizona attorney for advice tailored to your situation. Gordon Thompson is licensed to practice law in Arizona.