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Allen v. State6/28/2004
delayed his trial for almost a year.
The last and most important consideration in weighing whether Allen was prejudiced from the delay is whether the delay impaired his defense. Thomas v. State, 233 Ga.App. 224, 226(2), 504 S.E.2d 59 (1998). He contends that the delay severely impaired his defense, because during that delay the State lost his blood sample. The lost sample is tantamount to the loss of a favorable witness, he argues, and is particularly significant because the evidence that would prove the remaining charge of driving under the influence while less safe is entirely circumstantial.
Although Allen may be disadvantaged by the loss of the blood sample, the State may also be disadvantaged. No one knows whether the sample would have exonerated Allen or proved the case against him. Further, Allen knew in July 2002 that the State had no scientific reports to provide in response to Allen's discovery demands. "Under *164 the circumstances, it is not unreasonable to conclude that [Allen] elected to sit on the information and take [his] chances that the protracted delay would inure to [his] benefit." Brannen v. State, 274 Ga. 454, 458, 553 S.E.2d 813 (2001).
We weigh the relative prejudice resulting from the missing evidence against Allen's decision not to demand a speedy trial, perhaps with the expectation that the State's case would weaken. In response to the missing evidence, the State has agreed not to proceed on the count of driving with a blood alcohol level over 0.10 and only try Allen on the less safe count. "We do not condone the delay occasioned here. But each case must be reviewed on its own facts, and balancing all the Barker factors, we conclude that the trial court did not err in denying" Allen's motion for discharge and acquittal. Brannen v. State, supra, 274 Ga. at 458, 553 S.E.2d 813
Judgment affirmed.
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