Background
On August 8, 2023, a road rage incident unfolded on Interstate 40 near Kingman, Arizona. Robert (a pseudonym), driving a Subaru, noticed a white Mazda driven by Amadou Yacoub Diakhate behaving aggressively alongside him. After Diakhate pulled onto the shoulder and then turned his vehicle to drive the wrong way toward Robert’s car, Robert called 911 and fled at speeds up to 100 miles per hour. Diakhate pursued him to a gas station parking lot, where he yelled threats to kill Robert until a Department of Public Safety trooper arrived and Diakhate drove off.
DPS troopers stopped Diakhate’s Mazda on I-40. A trooper certified as a drug recognition expert observed that Diakhate was agitated, constantly moving, and exhibiting behavior consistent with methamphetamine use. A search of the vehicle uncovered a bong with burn marks and residue in the center console. After Diakhate performed poorly on field sobriety tests and refused a blood draw, DPS obtained a search warrant; the resulting blood sample tested positive for methamphetamine.
The State charged Diakhate with aggravated DUI (class 4 felony), endangerment (class 1 misdemeanor), possession of a dangerous drug, and possession of drug paraphernalia (class 6 felony). The drug possession charge was dismissed before trial. Following a three-day jury trial in May 2025, Diakhate was convicted on the remaining counts. The superior court sentenced him to the presumptive 1.5 years in prison for aggravated DUI and 3 days in jail for the other convictions. Diakhate appealed, challenging the sufficiency of the evidence supporting his aggravated DUI conviction and the trial court’s denial of a Willits instruction regarding allegedly missing dash-cam footage.
The Court’s Holding
The Court of Appeals affirmed on both grounds. On sufficiency of the evidence, the court found ample support for the jury’s finding that Diakhate was impaired to the slightest degree while driving. The court pointed to Robert’s account of erratic driving; multiple witnesses’ descriptions of Diakhate’s agitated and hyperactive demeanor; the forensic toxicologist’s testimony that methamphetamine causes such behavior and impairs judgment; Diakhate’s own admission that he intentionally drove the wrong way on the freeway; and his poor performance on field sobriety tests, including his inability to follow instructions during the walk-and-turn test as testified to by the drug recognition expert.
On the Willits instruction issue, the court held that the trial court committed no abuse of discretion in denying the request. To warrant a Willits instruction—which permits the jury to infer that lost or destroyed evidence would have been exculpatory—a defendant must establish that the evidence existed, that the State destroyed or failed to preserve it, that it had a tendency to exonerate the defendant, and that the defendant was prejudiced. Diakhate failed on all three remaining prongs. He pointed to nothing in the record establishing that any video beyond what was produced ever existed, and both Robert and the trooper denied altering the clips. Even if video was missing, Diakhate did not show the loss was attributable to the State rather than a camera malfunction or mishandling before the memory card was handed over. And even assuming State fault, evidence of a “thumbs up” gesture would not have tended to exonerate Diakhate of the charged conduct—the erratic driving, threats, and drug paraphernalia.
Key Takeaways
- Methamphetamine impairment for DUI purposes can be proven circumstantially through witness accounts of erratic driving, a defendant’s agitated behavior, expert testimony on drug effects, and poor field sobriety test performance—even without a contemporaneous observation of driving by law enforcement.
- A defendant seeking a Willits instruction must affirmatively show that allegedly missing evidence actually existed, that its absence is chargeable to the State, and that it would have had a genuine tendency to exonerate—speculation about what lost evidence might have shown is insufficient.
- A victim’s loss or mishandling of evidence before turning it over to law enforcement does not trigger Willits liability; the State is not responsible for evidence never within its control.
Why It Matters
This decision reinforces the broad scope of circumstantial evidence available to prosecutors in drug-impaired driving cases where no officer witnessed the driving itself. Defense challenges focused solely on the absence of direct impairment observations at the time of driving are unlikely to succeed when the totality of behavioral, toxicological, and driving evidence supports the jury’s verdict.
The Willits ruling is a practical reminder for defense practitioners that shorter or incomplete recordings do not automatically create an inference of spoliation. Courts will scrutinize whether the allegedly missing evidence ever existed, whether any gap is traceable to state action, and whether the missing content could plausibly have changed the outcome—rejecting instructions where those elements rest on conjecture. Note that this decision is non-precedential under Arizona Rule of the Supreme Court 111(c) and may be cited only as authorized by that rule.