 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Endsley10/19/2005
Dist. No. 96-CA-48. Thus, we will review this issue for plain error.
{ } In order to determine whether a pre-indictment delay deprived a defendant of due process, the court must use a burden-shifting test. First, the defendant must demonstrate that he was actually or substantially prejudiced by the pre-indictment delay. State v. Whiting (1998), 84 Ohio St.3d 215, 217, 702 N.E.2d 1199, confirming State v. Luck (1984), 15 Ohio St.3d 150, 472 N.E.2d 1097. If he makes this showing, the burden then shifts to the state to produce evidence of a justifiable reason for the delay. Id. The court then views the prejudice in light of the state's reason for the delay. Id.
{ } When a defendant asserts that a pre-indictment delay violated his due process rights, we may not presume prejudice. Metz, 4th Dist. No. 96-CA-48. Here, appellant alleges prejudice because he was not able to obtain an independent analysis of his blood sample and because he had no opportunity to have the vehicle involved in the crash inspected by an accident reconstruction expert. However, appellant cannot demonstrate actual prejudice. He merely speculates as to what prejudice he may have suffered.
{ } A statement regarding prejudice by the United States Supreme Court as quoted in State v. Starks (March 6, 1986), 8th Dist. No. 50087, is particularly relevant:
{ } "'No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statutes of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment, * * * due process claims are speculative and premature.'" Id., quoting United States v. Marion (1971), 404 U.S. 307, 325-26, 92 S.Ct. 455, 30 L.Ed.2d 468.
{ } While in this case appellant alleges prejudice, he has not demonstrated that such prejudice actually exists nor has he suggested the state intentionally delayed to gain a tactical advantage over him. He too is relying on the possibility that evidence was lost as a result of the delay.
{ } Furthermore, as we will discuss later, the trial court should have suppressed the blood test results. Thus, appellant cannot demonstrate that he was prejudiced by the delay in regard to testing his blood sample. Additionally, appellant eventually admitted that his drinking and driving caused the death of his friend. (Tr. 130). Therefore, an accident reconstruction expert would likely find that was the cause of the crash.
{ } Hence, appellant cannot demonstrate actual prejudice in the state's pre-indictment delay. Accordingly, appellant's first assignment of error is without merit.
{ } Appellant's second assignment of error states:
{ } "BOTH THE ORIGINAL INDICTMENT AND THE SUPERSEDING INDICTMENT RETURNED AGAINST DEFENDANT/APPELLANT WERE FATALLY DEFECTIVE."
{ } The superseding indictment under which the state proceeded alleged that appellant, while operating a motor vehicle, did cause Kastanek's death, as the proximate result of committing a violation of R.C. 4511.19(A), and while operating the motor vehicle, appellant was driving under a suspension imposed under R.C. 4507, in violation of R.C. 2903.06(A)(1).
{ } R.C. 2903.06(A)(1) provides, in part, that no person, while operating a motor vehicle, shall cause the death of a
Page 1 2 3 4 5 6 7 8 9 10 11 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|