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Rackoff v. State10/5/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
Stewart Daniel Rackoff was accused of driving under the influence in a June 2001 incident. Rackoff appeals the trial court's January 20, 2005 order denying his motion for discharge and acquittal on the grounds that the state violated his constitutional right to a speedy trial. He also claims the trial court erred by denying (i) his motion to strike the inspection certificate of the instrument used to perform his breath test and (ii) his motion to exclude the results of his breath test on the grounds that he was refused access to counsel. We discern no error and affirm.
1. Rackoff claims the trial court erred in denying his motion for discharge and acquittal on the grounds that he was denied his Sixth Amendment right to a speedy trial. We disagree.
In reviewing the trial court's finding that Rackoff was not denied his constitutional right to a speedy trial, the issue is whether the trial court abused its discretion in balancing the four factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001). "Those four factors are (1) the length of the delay; (2) the reason for the delay and whether this is attributable to the defendant or the state; (3) the timeliness of the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant. These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Citations and punctuation omitted.) Id.
(a) The first Barker factor is the length of the delay. Rackoff was arrested on June 9, 2001 and filed his motion for acquittal on January 11, 2005, a week before his scheduled bench trial. The trial court acknowledged that the case was "pending longer than is normal in this division." Given that 43 months passed from Rackoff's arrest and his motion for discharge and that Rackoff's case was not brought to trial within the normal time frame, the trial court properly proceeded to examine the three remaining Barker factors, as required when the delay is found to be presumptively prejudicial. See State v. Redding, 274 Ga. 831, 832 (561 SE2d 79) (2002) (27 month delay raises presumption of prejudice). Compare Wimberly v. State, 279 Ga. 65, 66 (608 SE2d 625) (2005) (a threshold showing that a defendant's case was not prosecuted with customary promptness triggers an inquiry using the Barker factors).
(b) The trial court considered the reasons for the delay, the second factor, by examining the procedural history of the case. Rackoff's case was originally scheduled to be heard in the Duluth City Court in August 2001, but was subsequently bound over to the State Court of Gwinnett County after Rackoff demanded a jury trial. In March 2002, Rackoff filed a motion in limine to exclude the results of the breath test, and the trial court granted the motion in May 2003. After granting the state's application for an interlocutory appeal, we reversed the trial court's order granting Rackoff's motion in limine on November 14, 2003. The trial court received the remittitur on January 8, 2004. After his case was placed on the two week jury calendar, Rackoff waived his right to a jury trial, and the trial court granted his request for a bench trial. At an April 7, 2004 hearing, the trial court heard additional pre-trial motions from Rackoff. The trial court denied the motions on September 10, 2004. Rackoff's trial was subsequently set for January 18, 2005.
Rackoff contends that most of the delay in reaching trial was caused by the state, and that the reason for the delay is a factor that should be weighed in his favor. In particular, Rack
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