DUI Dismissed Due to Prosecutor’s Miscalculation of Speedy Trial Window
Nov. 17, 2020
Dan’s client was arrested for DUI and the police did a blood draw to determine her blood alcohol content. While the blood test was pending, the prosecutor was forced to temporarily dismiss the case.
When the blood results were finally ready, the client’s BAC was well over the legal limit, but the prosecutor made a mistake: she miscalculated how much time she had left to try the case. Not only that, but she scheduled the client’s first return date just two days before the window to ask for more time closed. This put Dan in a tricky situation.
He had to object to the trial date – if you don’t object to a trial date immediately after it’s set, you permanently waive your objection – but he had to do it without alerting the prosecutor to the fact that she needed to ask for additional time before that two-day window had closed. So he played it as cool as he possibly could.
When the judge set the trial date, Dan said “I object to that trial date.” The judge then said, “Okay, what date would you prefer?” Dan said “There is no date that I prefer. I will object to the trial date no matter what date you pick.” The judge then said, “Why?” So Dan said, “Rather than explain the issue right now, while neither of you are prepared to discuss it, why don’t I brief the issue and submit my briefing to the Court and the prosecutor by the end of the week?” Both the judge and the prosecutor agreed that this was a fair way to go forward.
Three days later, Dan submitted his motion to dismiss for violation of the client’s right to a speedy trial, and a few weeks after that, the case was dismissed with prejudice.