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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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