Cawley vs. State, A14A0996, November 21. 2014. The Georgia Court of Appeals remanded this case, a second time, again to the trial court to properly weigh the Barker v. Wingo, 407 U.S. 415 (92 SCt 2182, 33 LE2d 101)(1972) factors on its second appearance on interlocutory appeal.  Defendant, Cawley, was arrested for DUI and speeding on February 19, 2009. The investigation was completed in a few hours. The case was accused in March of 2009 and the Defendant was arraigned and plead not guilty in April of 2009. Two years later…The State was granted a continuance because the Officer was on leave in June of 2011.

Defendant missed a court date on September 12, 2011, but showed up on September 21, 2011, claiming he never got notice of the court date on the 12th. The trial judge was retiring at the end of 2012 set the case for trial in January 2013. (A year later?). Defendant filed a motion to dismiss on Constitutional Speedy trial grounds in March of 2013. The Trial Court denied the Constitutional Speedy trial in May of 2013. The first appeal followed and a new order was issued in December of 2013 which is the subject of this appeal.  The Appellate Court found that for several issues the trial court abused its discretion (in other words lacking) and the trial court must reconsider and weigh the factors for the third time. The Court of Appeals broke the analyst into great detail:

1) Presumptive Prejudice: After a year there is presumptive prejudice and the court must analyze the reasons for the delay. State v. Buchner, 292 GA. 390, 392-393; 738 SE2d 65 (2013).

2) Length of the Delay: Weight of the Delay in a DUI is always on the State because DUI investigations are complete in a few hours. State v. Takyi, 322 Ga. App. 832, 836; 747 SE2d 24 (2013). 

3) Reason for the Delay: Where no reason appears for the delay, it must be attributed to the State. Ruffin v. State, 284 GA. 52, 61; 663 SE2d 189 (2008). The Court must look to the period that jury trials were held or scheduled to apportion responsibility for the delay. Id.

4) Assertion of the Right: Whether the Defendant asserts the right to Constitutional Speedy Trial if asserted late is weighed against the Defendant but can be mitigated by the occasions that he announces ready for trial. State v. Johnson, 291 Ga. 863, 868; 734 SE2d 12 (2012).

5) Prejudice: The most serious form of prejudice is that the Defendant’s defense will be impaired by dimming memories and loss of exculpatory evidence. State v. Pickett, 288 Ga. 674, 677; 706 SE2d 561 (2011).

6) Balancing of Factors: Where the trial court significantly misapplies the law or errs in a material finding of fact the Trial Court’s discretion can not be affirmed.  Pickett, supra at 679.

-Author: George Creal

Georgia DUI Lawyer | DUI Lawyer Atlanta