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Dombrovski v. State8/2/2000
eserve the blood sample.
Pre-accusation delay
Finally, Dombrovski contends that the DWI charge against her should have been dismissed because the State did not charge her until seven months after the accident. She claims that this delay was unreasonable and that it prejudiced her defense. It is true that the due process clauses of the United States and Alaska Constitutions protect a defendant against unreasonable pre-accusation delay. But Dombrovski bears the burden of proving that the delay was unreasonable and that it actually prejudiced her defense of the case. A showing of potential or possible prejudice will not suffice. To the contrary, we have previously held that actual prejudice requires:
particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case. ... he generalized prospect of ... lost witnesses does not amount to actual prejudice.... At the very least, the accused must show that[,] but for the delay, he would have been able to present favorable evidence. Mere speculation about the loss of favorable evidence is insufficient.
Dombrovski contends that the State lacked a good reason for the seven-month delay in charging her with DWI. But even assuming that the delay was unreasonable, Judge Kauvar found that Dombrovski failed to show that the delay actually prejudiced her case. We agree that Dombrovski has not shown that the delay had a "specific and substantial" impact on the outcome of her case, nor has she shown that, but for the delay, she would have been able to present favorable evidence. As Judge Kauvar recognized, even if the State had charged Dombrovski with DWI within a month of her accident, there is no evidence that the blood sample would have still existed at that time, nor has Dombrovski shown that the results of a second test would have been favorable to her. Consequently, we find that Judge Kauvar did not err in refusing to dismiss the DWI charges against Dombrovski.
Conclusion
We AFFIRM Dombrovski's conviction.
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