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City of Grand Forks v. Ramstad3/26/2003
AFFIRMED.
[ ] Darin Ramstad appealed from a judgment of conviction for driving under the influence of alcohol. We affirm.
I.
[ ] On February 20, 2002, Darin Ramstad was arrested for driving under the influence of alcohol. He was taken to the Grand Forks Police Department, where he consented to an intoxilyzer test. The test indicated Ramstad's blood alcohol level was .13 percent.
[ ] On February 21, 2002, Ramstad's attorney served discovery requests upon the City. Among numerous other items, Ramstad requested that the City disclose:
ù the dates of all simulator tests (if applicable) run by the operator within twelve months prior to the date of Defendant's tests to verify the validity of his test certification;
ù the date of [the breath analyzer's] latest certification;
ù any repair records of the breath analyzer;
ù whether the breath analyzer has been tested for radio frequency interference (RFI) and, if so, the dates of the testing, the circumstances under which the testing was done, the person who tested the analyzer, the FRI sources to which the analyzer was subjected, and the distance each source was to the analyzer; . . . .
[ ] In response to Ramstad's discovery requests, the City on February 28, 2002, provided some of the items which had been requested. The cover letter indicated that the enclosed items constituted the City's "entire file" on Ramstad's case. The requested items regarding the breath analyzer and test operator were not provided.
[ ] Trial was set for May 15, 2002, with jury selection scheduled for May 14, 2002. On May 14, 2002, Ramstad served a motion to suppress evidence of the chemical test results because of the City's failure to provide the requested discovery materials. That same day, the City faxed the requested materials to Ramstad's attorney.
[ ] On May 15, the morning of the scheduled trial, the trial court heard the suppression motion in chambers. Ramstad's attorney advised the court that Ramstad had retained an expert who would have testified if the breath analyzer records had been provided earlier, and Ramstad's attorney moved for a continuance to allow the expert to review the disclosed documents. The trial court denied the motion to suppress and the motion for a continuance.
[ ] The breath test results were admitted into evidence and the jury returned a guilty verdict. A judgment of conviction was entered and Ramstad appealed.
II.
[ ] Ramstad argues the requested information was exculpatory or could have been used to "impeach" the accuracy of the breath analyzer, and therefore the City's failure to disclose those records violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).
[ ] In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment. Id. at 87; see State v. Sievers, 543 N.W.2d 491, 495 (N.D. 1996). To establish a Brady violation, the burden is upon the defendant to show: "(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed." State v. Goulet, 1999 ND 80, 15, 593 N.W.2d 345; see also Sievers, at 496. Ramstad has failed to establish two of the elements of a Brady violation.
[ ] The initial inquiry when a de
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