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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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