Attorney Appeals His Own DUI Conviction


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(Photo by Tim Evanson/Creative Commons)

Richard Michael Swartz is a criminal defense attorney based in Sierra Vista who often represents indigent defendants on behalf of Cochise County. He was tried and convicted in July 2019 by a Bisbee Justice Court jury of driving in July 2018 while under the influence.

tombstone gunfight palaceOn June 15, nearly two years from the original traffic stop, a 44-page appeal was filed on Swartz’s behalf by Tucson-based attorney Emily Danies. The appeal memorandum cited four reasons why Swartz is entitled to a new trial, including a conflict of interest by the Cochise County Attorney’s Office and mistakes allegedly made by Justice of the Peace Janus Poppe, who was presiding over his first jury trial.

As support of the appeal, Danies relies on 1,260 pages of transcripts from pretrial hearings and the three-day trial. She also points out Swartz’s arrest was made by Rene Algara, a trooper for the Arizona Department of Public Safety (DPS) who was himself arrested less than two months after testifying at Swartz’s trial.

Court records show a U.S. Border Patrol agent was conducting surveillance of the Gay 90’s BAR in Naco near Bisbee about 2 p.m. on July 26, 2018 when he saw a man standing next to a Ford Crown Victoria in the bar’s parking lot.  The agent later testified that “narcotics and alien smugglers frequently use the Gay 90s as a meet up point.”

The USBP agent also testified that a check of the Ford’s license plate showed it was not registered for highway use. Swartz -who was still not identified- got into the vehicle and drove away toward Bisbee.

That’s when the USBP agent called Algara, who had authority to conduct a traffic stop.

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Algara later testified he initiated a traffic stop when the driver of the Ford failed to signal a turn. The trooper came to suspect the driver, by then identified as Swarts, was under the influence of drugs or alcohol.

Swartz was booked into the Cochise County jail after breathalyzer tests reflected BAC levels of 0.093 and 0.096. The charges were driving while impaired to the slightest degree and driving under the influence with “an alcohol concentration of 0.08 or more.”

Jail records show Swartz spent the night in jail before being released on his own recognizance the next morning at an initial court appearance. A year later his case finally went to trial where jurors found him guilty of both charges.

The appeal relies heavily on Poppe’s denial of several pretrial and trial motions made by Bob Zohlmann, who represented Swartz. Zohlmann argued that the county attorney’s office should not be involved in prosecuting the case, given that Lori Zucco, McIntyre’s chief deputy of the criminal division, was a close personal friend of Swartz.

In addition, Swartz’ estranged wife was pressuring McIntyre to pursue criminal charges against Swartz in an unrelated domestic violence allegation.

Zohlmann also unsuccessfully challenged several procedural matters, including the manner in which Algara conducted the breathalyzer test which purportedly showed BAC readings above the legal limit of 0.08. And a defense motion for dismissal of one of the two counts due to changes in how the prosecutor was referring to the charge.

The Cochise County Attorney’s Office is slated to file an answer to the appeal this week. Then the case will be transferred to Judge Tim Dickerson of the Cochise County Superior Court. In the meantime, Swartz’s convictions remain in force.

Court records show Algara was arrested by the FBI in late September 2019 after being terminated by DPS. He was initially charged with more than 20 felonies including money laundering and falsifying government records.

The Arizona Attorney General’s Office took over the case shortly after Algara’s arrest, but formal charges were never filed. When asked Monday, spokeswoman Katie Conner of the AG’s Office said the investigation into Algara’s activities is ongoing.