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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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  1. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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