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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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