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Trial court erred in denying motion to continue

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A Marion Superior trial court should have granted a woman's motion to continue the day of her bench trial because she had a constitutional right to present a defense to support her involuntary intoxication argument, the Indiana Court of Appeals decided today.

In Jennifer Barber v. State of Indiana, No. 49A02-0901-CR-34, Jennifer Barber argued the trial court erred in denying her motion because her defense counsel had just located two witnesses who supported her defense of involuntary intoxication the weekend before her trial was to start. Barber was convicted of Class A misdemeanor operating while intoxicated and Class C misdemeanor failure to stop after an accident resulting in property damage.

Barber played pool at an American Legion in Indianapolis and said she only had one vodka martini that night. She claimed she left her drink unattended several times throughout the night. She later got in her car and rear-ended a car and then left the scene of the accident. Barber claimed she doesn't remember anything between the time of playing pool and waking up in the hospital. When arrested, she couldn't stand up and was slurring her words. She consented to a chemical test, but one was never given.

Barber was granted two continuances, the second to allow her to locate witnesses who could testify on her behalf that she was involuntarily intoxicated. It wasn't until the day before her bench trial that her attorney located a key witness - a woman who claimed she too may have been involuntarily drugged that night. The trial court denied the motion to continue because it had set a hard deadline of Dec. 1, 2008, for the witness list; her bench trial was scheduled for Dec. 15.

There's no evidence Barber's attorney acted in bad faith in asking for the continuance and the state would have suffered minimal prejudice in delaying the trial, wrote Judge Nancy Vaidik. There was obvious prejudice to Barber from not being able to present the testimony of the other woman and another witness.

"In light of Barber's right to present a defense, the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, the lack of substantial prejudice to the State, and the resultant prejudice to Barber, we conclude that the trial court abused its discretion in denying Barber's motion to continue and therefore remand for a new trial," the judge wrote.

The appellate court also pointed out for remand that the abstract of judgment shows Barber was convicted under Indiana Code Section 9-30-5-1(b), but according to the charging information, she was charged under section 2(b), which requires her to operate a vehicle while intoxicated in a manner that endangers another person. Because the chemical test and blood draw didn't occur, the appellate court was "perplexed" as to why the trial court entered judgment of conviction under 9-30-5-1, wrote Judge Vaidik.

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  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. 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

  4. 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)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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