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Man has second chance to get OWI charges dropped

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A Jefferson County man who was brought to court for operating a vehicle while intoxicated more than two years after he was pulled over by police will get another chance to argue that his right to a speedy trial was violated.

The Indiana Court of Appeals has remanded to the trial court for a new hearing on a motion to dismiss in Michael E. McClellan v. State of Indiana, 39A04-1305-CR-248.
 
McClellan filed an interlocutory appeal after the trial court dismissed his motion to dismiss the charges against him. He had been arrested for drunken driving in February 2009. Seven months later in August, McClellan was pulled over for suspicion of operating a vehicle while intoxicated. Because his health prevented him from taking a breath test, McClellan consented to a blood draw.

On Dec. 23, 2009, McClellan pleaded guilty to the February operating while intoxicated charge and was sentenced to one year of home detention. On May 25, 2010, two days after it had received the toxicology report from the August arrest, the state charged McClellan with operating a vehicle while intoxicated, a Class A misdemeanor, and operating a vehicle while intoxicated, a Class C misdemeanor.

The court issued a summons to McClellan to his Milton, Ky., address even though he was serving his home detention in Hanover, Ind. When the summons was returned as undeliverable and McClellan did not appear for the initial hearing, the court issued an arrest warrant. McClellan was eventually served with the warrant in November 2012. A month later he filed a motion to dismiss, alleging his due process rights had been violated.

The Indiana Court of Appeals turned to the four-part test established by Barker v. Wingo, 407 U.S. 514, 530 to determine whether there was a speedy trial violation. On the fourth factor – prejudice to the defendant – the Court of Appeals found the state had not had the opportunity to rebut the presumption of prejudice in this case.

Judge Margret Robb wrote for the court that if the state is able to rebut the presumption of prejudice, this factor may then weigh against McClellan in the analysis. Consequently, the Court of Appeals remanded for a new hearing.


 
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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