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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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