Case Information
*1 SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 18, 2015 In the Court of Appeals of Georgia
A15A1626. THE STATE v. THOMPSON.
B RANCH , Judge.
Lauren Lynn Thompson brought a plea in bar concerning DUI and other charges against her on the ground that she had been deprived of her constitutional right to a speedy trial. On appeal from the trial court’s grant of that plea, the State argues that the grant was error because Thompson herself was substantially responsible for any delay in getting to trial and could not have suffered any prejudice as a result of the destruction of the blood sample taken at the scene. We agree with the second of these contentions, and also find that the trial court did not make sufficiently explicit findings of fact on the timeliness of Thompson’s assertion of her speedy trial right. We therefore vacate the trial court’s judgment and remand for reconsideration.
We examine Thompson’s constitutional speedy-trial claim under the four-part
test established in
Barker v. Wingo
, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101)
(1972), “considering (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. See
Brown
v. State
,
Viewed in favor of the trial court’s judgment, the record shows that on the early morning of December 12, 2012, Thompson was driving her car when she crossed over into the opposite lane, struck an embankment, and flipped over. The trooper responding to the scene accompanied Thompson to the hospital, where the trooper *3 noted that Thompson had slow speech, constricted eye pupils, red and watery eyes, and smelled of alcohol. Thompson said that she did not remember what had happened, that she thought she had fallen asleep, and that she had been drinking bourbon and Coke while on prescribed doses of methadone. At the hospital, the trooper placed Thompson under arrest for DUI and read her the Georgia implied consent notice, including the portion of that notice informing Thompson that she was entitled to an independent test of her blood alcohol level. [1] It is undisputed that Thompson agreed to give a blood sample and declined an independent test. Thompson’s appearance bond, issued on December 13, noted that she was facing charges including driving under the influence of drugs.
On February 2, 2013, Thompson appeared pro se in Franklin County Probate Court, demanded a jury trial, and moved that the case be transferred to Franklin County Superior Court. The probate court granted Thompson’s motion. On May 6, *4 2013, counsel appeared in the superior court and moved to transfer the case back to the probate court. [2]
On August 21, 2013, Thompson was formally charged with the misdemeanors of driving under the influence of benzoylecgonine (a cocaine metabolite), methadone, and alcohol; driving with a suspended license; and failure to maintain lane. On September 26, Thompson filed a general demurrer to the accusation and an omnibus motion to suppress a wide range of evidence, some of which was not at issue in the case.
On October 2, 2013, Thompson wrote to the Georgia Bureau of Investigation that she had been told at the scene that she could obtain independent testing and asked that she now be allowed to do so on the basis of the blood sample already taken. Two weeks later, on October 16, the GBI wrote back that it had received the sample on September 13, 2013; that it would retain the sample for one year; that it was “the responsibility of any interested party to make the appropriate arrangements to re-test these specimens within that one-year period”; that it was Thompson’s responsibility to “contact an independent laboratory and arrange for them to pick up the specimen(s) either by lab courier or pre-paid parcel”; and that the GBI would *5 “need a copy of [a] court order or [a] written authorization from the prosecuting agency” before it could release the sample for testing. On November 7, Thompson responded to the GBI, purportedly withdrawing her consent to having given the sample because she had never been told that she “had to go to court and get an order” to obtain an independent test. Thompson also noted that she “did not want anything to be destroyed” and sent a copy of her response to the trooper along with a note that “[y]ou told me I could have an independent test.”
Trial was scheduled for March 31, 2014. On March 12, the State amended the accusation to exclude the allegation that Thompson was under the influence of the cocaine metabolite. On March 31, the State announced that it was ready, but Thompson asked for a continuance, which the trial court granted. The case came up for a second calendar call on July 10. The State again announced that it was ready. Thompson also announced ready, but asked that the court rule on her original motion to suppress and her request for an independent blood test, both of which were heard the following day. After testimony from the trooper and the hospital phlebotomist, including that Thompson’s blood sample had revealed a blood alcohol concentration *6 of .03 grams, or .05 grams below legal intoxication per se, [3] the trial court ruled that “any samples of [Thompson’s] blood still in existence be preserved by the Department of Forensic Sciences” and that the Department “shall facilitate independent testing of [the] blood.” It is undisputed, however, that the blood sample had already been destroyed at the time the trial court issued its order. The trial court did not rule on Thompson’s motion to suppress.
Seven months later, on February 25, 2015, Thompson filed a demurrer and plea in bar in which she asserted for the first time that her constitutional right to a speedy trial had been violated. After a hearing on March 2, 2015, the trial court granted the motion on the grounds that (1) the length of the delay was presumptively prejudicial and weighed heavily against the State; (2) the fact that much of the delay was unexplained weighed against the State; (3) Thompson had not waived her speedy trial right by failing to assert it; and (4) Thompson had suffered “irreparable harm” as a result of the State’s delay in accusing her of driving under the combined influence of *7 drugs and alcohol, during which the blood sample was destroyed. This appeal by the State followed.
1.
Presumption of Prejudice
. Thompson’s trial was delayed two years and two
months from the date of her arrest to the disposition of her plea in bar. “[O]ne year”
from arrest to disposition of a plea in bar “generally marks the point at which delay
becomes presumptively prejudicial.”
Porter
,
2. Responsibility for the Delay . In considering the parties’ respective responsibilities for the twenty-six month delay between arrest and disposition of the plea in bar, the trial court noted the three months from arrest to initial appearance, the six months between jury trial demand and formal accusation, and the nine months *8 between Thompson’s first request for an independent blood test and the issuance of the trial court’s order authorizing the test. Without noting whether Thompson herself caused any part of the delay, and thus without engaging in any weighing process, the the trial court concluded that responsibility for the delay weighed against the State.
Thompson also caused some substantial delay, however, by filing a jury trial
demand and then moving to transfer the case back to superior court and failing to
obtain a ruling on that motion; by obtaining a continuance between February and July
2014; by filing two motions, including her request for an independent blood test, in
July 2014 (the second occasion on which the State announced ready for trial); by
failing to obtain a ruling on her motion to suppress; and by waiting some
indeterminate period between the time she learned that the blood sample had been
destroyed and the filing of her plea in bar. As we conclude in Division 4 below,
Thompson’s motion for an independent blood test lacked merit. We also note that
delay resulting from “negligence and workloads” is “weighed only lightly, or
benignly, against the State.”
Porter
,
3.
Assertion of the Speedy Trial Right.
The trial court correctly noted that the
speedy trial right is not absolutely waived for a failure to assert it. See
Teasley v.
State
,
The trial court noted that “[t]he [a]ccused did not initially assert a speedy trial
[demand].” There is no indication in the trial court’s order that it considered the delay
in Thompson’s assertion of her speedy trial right in the balancing process mandated
by
Barker
. Our Supreme Court has held it “imperative” that “in cases implicating a
defendant’s constitutional right to speedy trial, the trial court enter findings of fact
and conclusions of law consistent with
Barker.
”
Porter
, 288 Ga. at 533 (2) (e)
*10
(citations and punctuation omitted). In the absence of any findings by this trial court
as to the weight to be given to Thompson’s delay in asserting her speedy trial right,
“there is no exercise of discretion for this Court to review” such that this order must
be “vacated and the case remanded for the entry of a proper order pursuant to
Barker.
” Id. (citation and punctuation omitted); see also
Higgenbottom
,
4.
Prejudice
. “The prejudice created by the delay is the fourth and final factor
in our analysis, in which we consider three interests: (i) preventing oppressive pretrial
incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting
*11
the possibility that the defense will be impaired.”
Bass
, 275 Ga. App. at 261 (4)
(citation and punctuation omitted); see also
Hughes v. State
,
(i) It is undisputed that the delay here was neither purposeful nor oppressive,
and there is no evidence of bad faith on the State’s part. See
Bass
,
(ii) “Anxiety and concern of the accused are always present to some extent, and
thus absent some unusual showing are not likely to be determinative in [a]
defendant’s favor.”
Mullinax v. State
,
(iii) The specific manner in which Thompson’s defense was impaired is “the
most important component of the prejudice analysis.”
Bass
,
Thompson was on notice that the State was considering charges that she was under the influence of both drugs and alcohol as early as December 2013. More importantly, Thompson has cited no authority supporting her proposition that her right to an independent chemical test of her blood survived her waiver of that right at the scene. OCGA § 40-6-392 (a) provides:
Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391 [concerning DUI], evidence of the amount of alcohol or drug in a person’s blood , urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. . . .
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer . The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney . The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.
(Emphasis supplied.)
This Court has thus held that although an officer administering a chemical test
under OCGA § 40-6-392 (a) (4) must “
advise
the testee that he is entitled to an
independent test of his own choosing[,] [o]nce that duty is fulfilled by the officer, the
statutory obligation is satisfied.”
State v. Griffin
,
[T]he choice to submit or refuse to submit to the analysis of one’s blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, but the criminal process often requires suspects and defendants to make difficult choices. DUI defendants . . . must determine, often under difficult and stressful circumstances, whether to request an independent test. That the choice may be difficult does not render it fundamentally unfair[.]
Here, Thompson admitted below that OCGA § 40-6-392 (a) (3), which
specifically concerns independent tests, did not apply, presumably because her
request came months after she waived any right she had to such a test. Thompson also
asserted below that OCGA § 40-6-392 (a) (4) granted her the right to an independent
test of her blood sample, but she has abandoned this argument on appeal, perhaps
because that portion of the statute concerns only a state-administered test. See, e.g.
Birdsall v. State
,
Thompson was also charged only with misdemeanors, as to which OCGA § 17-
16-23 (b)
[5]
provides: “In all criminal trials the defendant shall be entitled to have a
complete copy of any written scientific reports in the possession of the prosecution
which will be introduced in whole or in part against the defendant by the prosecution
in its case-in-chief or in rebuttal.” Subsection (a) of the same statute includes “blood
alcohol
test results
done by a law enforcement agency” in the category of
discoverable “written scientific reports” (emphasis supplied); it does
not
include the
biological samples on which such test results are based. See
State v. Tan
, 305 Ga.
App. 55, 58 (
Finally, Thompson has failed to show that she was prejudiced as to any
constitutional right by the destruction of the blood sample because she did not show
that “‘the evidence [possessed] an exculpatory value that was apparent before it was
destroyed[.]’”
Clay v. State
,
5.
Balancing factors
. When, as here, a trial court “‘has clearly erred in some of
its findings of fact and/or has misapplied the law to some degree, the deference owed
*17
the trial court’s ultimate ruling is diminished.’”
Porter
,
As we have explained, the third and fourth
Barker
factors must weigh heavily
against Thompson on remand. Nonetheless, we remain mindful of our Supreme
Court’s admonition that “[i]f all four factors point in one direction, the result of
weighing them together will be clear, but otherwise, under the circumstances of a
particular case, any one factor may be weighty enough to tip the balance.”
Porter
, 288
Ga. at 532 (2) (d); see also
Barker
,
Judgment vacated and case remanded with direction. Andrews, P. J., and Miller, J., concur .
Notes
[1] See OCGA § 40-5-67.1 (b) (2), the implied consent notice for suspects age 21 and over, which reads in relevant part: “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.”
[2] The trial court did not rule on this motion before disposing of the plea in bar.
[3] See OCGA § 40-6-391 (a) (a person “shall not drive or be in actual physical control of any moving vehicle while . . . (5) [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]”
[4] For purposes of remand, we note that when considered in light of her July
2014 request for a ruling on her meritless motion for an independent blood test,
Thompson’s statement of readiness in July 2014 “cannot be construed as an assertion
of the right to a speedy trial.”
Brannen v. State
,
[5] Compare OCGA § 17-16-4 (applicable only to felony offenses; see OCGA § 17-16-2 (a)).