Under Barker v. Wingo, 407 U.S 514, 92 Sgt 2182, 33 LE2d 101 (1972), a Constitutional Speedy Trial claim is analyzed under a four-part test. The Court must consider (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. This test is analyzed under an abuse of discretion and clear error standard. Thompson was arrested for DUI on December 12, 2012. She was in an accident. A State Trooper followed her to the hospital where he observed slow speech, constricted pupils, red and watery eyes, and an odor of alcohol. Thompson claimed to have fallen asleep after consuming a bourbon and coke while on prescribed methadone. She was arrested, read implied consent, and given a blood test. On February 3, 2013, she appeared in Franklin County Probate Court and requested a jury trial. On August 21, 2013, she was formally accused of Misdemeanor Drug DUI. On September 26, 2013, Thompson filed a general demurrer, and an omnibus motion to suppress. On October 2, 2013, Thompson wrote to the GBI requesting an independent test of the blood in the GBI’s possession. The GBI wrote back that it received the blood on September 13, 2013, and it would be Thompson’s responsibility to contact an independent laboratory and have the laboratory pick the sample up for testing within one year of receipt by the GBI or September 13, 2014.
On November 7, 2013, Thompson wrote the GBI informing them that she was told she would need a court order to test the blood but not to destroy it. The case was scheduled for trial on March 31, 2014, but the State amended the accusation on March 12, 2014, to add a count for DUI per se cocaine metabolite. On March 31, 2014, the State announced ready but Thompson requested a continuance which was granted due to the new charge in the amended accusation. On July 10th, 2014, the State and Defendant announced ready but Defendant requested a ruling on her motion to suppress and request for an independent test of the GBI blood. The Court heard these motions on July 11, 2014. The Trial Court ruled that GBI preserve the blood sample and facilitate independent retesting of the blood. It was undisputed that the blood sample had already been destroyed by July of 2014 which was less than one year after the GBI received it in violation of the GBI policy and Thompson’s request. On February 25, 2015, Thompson filed a plea in bar. On March 2, 2015, the Trial Court granted the Constitutional speedy trial claim based on the 2 years 2-month delay, much of the unexplained delay weighed on the state, Thompson has not waived her speedy trial right, and Thompson had suffered irreparable harm by the destruction of the blood sample.
The Court of Appeals found that the delay was presumptively prejudicial as it was over one year. The Court of Appeals found that Thompson was responsible for delay by requesting a jury trial, obtaining a continuance two weeks after a material amendment to the accusation, by filing a motion to suppress and a motion for an independent test. Finally, by the delay between the constitutional speedy trial motion and learning of the destruction of the blood sample. Negligence and heavy workload delays on the part of the State only lightly or benignly weigh against the state. The Court of Appeals found that the Trial Court need to weigh Thompson’s late assertion of her Constitutional speedy trial right as it was not asserted from the beginning.
Finally, as to prejudice, the Court of Appeals found that three interests must be considered: (1) pretrial incarceration, (2) anxiety and concern of the defendant, and (3) impairment of the defense. See, Bass v. State, 275 Ga. App. 259, 260, 620 SE2d 184 (2005). The Court of Appeals found that the delay was not purposeful or oppressive as the destruction of a blood sample is not bad faith even in violation of Standard Operating Procedures and written request of the Defendant. Anxiety and concern are always present and not determinative unless unusual. Finally, the Court of Appeals ruled that Thompson’s right to an independent test did not survive her wavier at the scene. Thus, she could show no prejudice. Query: Wouldn’t Thompson have a right under Brady v. Maryland to exculpatory evidence given that we know that her blood alcohol was under the legal limit at .03 and entitled to a presumption of sobriety under OCGA 40-6-392. Further, under Brady, supra, isn’t Thompson entitled to an in-camera review of the blood evidence upon request under Brady, supra. Even so, is this an abuse of discretion or clear error?
Author: George C. Creal, Jr.