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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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