The State v. Thompson

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.

BRANCH, 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, 264 Ga. 803, 804 (2) (450 SE2d 821) (1994).” Johnson v. State, 268 Ga. 416,

417 (2) (490 SE2d 91) (1997). “The factors should be considered together in a

balancing test of the conduct of the prosecution and the defendant.” Nusser v. State,

275 Ga. App. 896, 897 (622 SE2d 105) (2005) (citations and punctuation omitted).

“Absent an abuse of discretion, we must affirm the trial court’s balancing and

weighing of the four Barker factors.” Id. However, when 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 the trial court’s ultimate ruling is diminished.’” State v. Porter, 288

Ga. 524, 526 (2) (a) (705 SE2d 636) (2011), quoting Williams v. State, 277 Ga. 598,

601 (1) (e) (592 SE2d 848) (2004).

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

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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,

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.”

3
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

2
The trial court did not rule on this motion before disposing of the plea in bar.

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“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

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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

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[.]”

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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, 288 Ga. at 526-527 (2) (b) (citations and

punctuation omitted). “[O]nce the threshold of presumptive prejudice is satisfied, a

presumption of prejudice always exists, although it increases in weight over time.”

Id. at 531 (2) (c) (4) (citation omitted). Given the length of this delay, the trial court

was authorized to presume prejudice to Thompson’s right to a speedy trial such that

it was required to analyze the remaining three Barker factors, “with the length of the

delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App.

259, 260 (1) (620 SE2d 184) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1)

(555 SE2d 710) (2001).

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

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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, 288 Ga. at 527 (2) (c) (2), citing Sweatman v.

State, 287 Ga. 872, 875 (4) (700 SE2d 579) (2010). In light of our determination

below that the trial court erred in failing to weigh Thompson’s delay in asserting her

speedy trial right and in concluding that she suffered prejudice as a result of the

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destruction of the blood sample, we direct the trial court to recalculate whether this

factor should continue to weigh against the State. See Porter, 288 Ga. at 534 (2) (e)

(noting trial court’s miscalculation of responsibility for delay, and ordering that the

trial court reconsider this and other Barker factors).

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, 307 Ga. App. 153, 160 (2) (c) (704 SE2d 248) (2010). As we noted in that same

case, however, the fact that the right cannot be waived outright “does not mean . . .

that the defendant has no responsibility to assert his right,” but rather that “the

defendant’s assertion of or failure to assert his right to a speedy trial is one of the

factors to be considered in an inquiry into the deprivation of the right.” Id. (citations,

punctuation and footnote omitted).

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)

9
(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, 288 Ga. 429,

431 (704 SE2d 786) (2011).4

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

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, 274 Ga. 454, 456 (553 SE2d 813)
(2001) (objecting to continuance, stating readiness for trial, and suggesting witnesses
should be held in contempt for failing to appear did not amount to an assertion of the
speedy trial right) (citations omitted). The fact that Thompson failed to invoke her
speedy trial right until well after the case was first called for trial, at which time she
moved for a continuance, may also weigh “heavily” against her. See Porter, 288 Ga.
at 528-529 (2) (c) (3) (noting that defendant did not assert his speedy trial right until
after two trial dates had been set and continued at his counsel’s request, and that “an
extended delay in asserting the right to a speedy trial should normally be weighed
heavily against the defendant”) (emphasis in original); Brown v. State, 287 Ga. 892,
895 (1) (c) (700 SE2d 407) (2010) (holding that a defendant’s failure to assert the
speedy-trial right weighed heavily against co-defendants who waited two and three
years, respectively, to assert that right).

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the possibility that the defense will be impaired.” Bass, 275 Ga. App. at 261 (4)

(citation and punctuation omitted); see also Hughes v. State, 228 Ga. 593, 596 (1) (d)

(187 SE2d 135) (1972) (“To sustain [a defendant’s] contention that there was a

violation of his constitutional right to a speedy trial, not only must delay be shown,

but that such delay was purposeful, oppressive, or prejudicial”) (citations and

punctuation omitted).

(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, 275 Ga. App. at

261-262 (4) (no bad faith found in destruction of a DUI blood sample).

(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, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001)

(citation and punctuation omitted). Thompson was incarcerated for only one day

before posting bond, with the result that this factor cannot weigh in Thompson’s

favor. See Bass, 275 Ga. App. at 261-262 (4) (no pretrial imprisonment meant that

this factor could not weigh in a defendant’s favor).

(iii) The specific manner in which Thompson’s defense was impaired is “the

most important component of the prejudice analysis.” Bass, 275 Ga. App. at 261 (4),

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citing Mullinax, 273 Ga. at 759 (2). The trial court concluded that Thompson was

prejudiced by the State’s delay in charging her with driving under the influence of

both alcohol and drugs and by the destruction of the blood sample she first requested

in October 2013. We cannot agree.

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[.]

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 (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, 204 Ga. App. 459, 461 (2) (419

SE2d 528) (1992) (citation and punctuation omitted; emphasis in original). As our

Supreme Court has held, moreover, a defendant’s right to ask for an independent test

at the time of arrest under OCGA § 40-6-392 (a) (3) “is not one of constitutional

dimension but a ‘matter of grace’ bestowed by the Georgia legislature.” Padidham

v. State, 291 Ga. 99, 101 (2) (728 SE2d 175) (2012), quoting South Dakota v. Neville,

459 U. S. 553, 565 (III) (103 SCt 916, 74 LE2d 748) (1983); see also Rodriguez v.

State, 275 Ga. 283, 287-288 (3) (565 SE2d 458) (2002). As the Padidham Court went

on to explain:

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 [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[.]

291 Ga. at 102-103 (2) (citations and punctuation omitted).

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, 254 Ga. App. 555, 558 (562 SE2d 841) (2002) (OCGA § 40-6-392

(a) (4) “specifies no deadline for requesting ‘full information,’ no timetable for

supplying the information, and no penalty for the state’s failure to produce it”).

Further, and although OCGA § 40-6-392 (a) (3) authorized Thompson to obtain an

independent test of her blood sample, neither that nor any other statute granted her

that right in perpetuity. On the contrary, “the facts show that [Thompson] was

14
afforded the opportunity to obtain an independent test of [her] blood, and that is all

that is required” by the statute. Griffin, 204 Ga. App. at 461 (2) (emphasis in

original).

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 (699 SE2d 74) (2010) (trial court erred in granting defendant’s motion

to suppress a breath test slip from an Intoxilyzer because the slip did not show any

result and therefore did not constitute a “written scientific report” under OCGA § 17-

16-23 (b)); Birdsall, 254 Ga. App. at 558 (printout from gas chromatograph was not

a scientific report for purposes of OCGA § 17-16-23 (b)). Indeed, OCGA § 17-5-56

5
Compare OCGA § 17-16-4 (applicable only to felony offenses; see OCGA §
17-16-2 (a)).

15
(a) provides that with exceptions not applicable here, “[b]iological samples collected

directly from any person for use as reference materials for testing or collected for the

purpose of drug or alcohol testing shall not be preserved.” (Emphasis supplied.)

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, 290 Ga. 822, 841 (5) (c) (725 SE2d 260) (2012), quoting

Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994). Specifically, and in

light of both Thompson’s admission to have drunk bourbon in combination with her

prescribed doses of methadone and the State blood test results confirming a blood

alcohol level of .03, Thompson’s assertion that the destroyed blood sample would

have exonerated her is mere speculation. This fourth Barker factor must therefore

weigh in the State’s favor as a matter of law. See Glover v. State, 291 Ga. 152, 155

(3) (728 SE2d 221) (2012) (despite a ten-year delay in being brought to trial, a

defendant had provided “no evidence of prejudice arising from the delay”) (citation

and punctuation).

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

16
the trial court’s ultimate ruling is diminished.’” Porter, 288 Ga. at 533 (2) (e), quoting

Williams, 277 Ga. at 601.

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, 407 U. S. at 533 (IV) (“We regard none of the four

factors . . . as either a necessary or sufficient condition to the finding of a deprivation

of the right of speedy trial. Rather, they are related factors and must be considered

together with such other circumstances as may be relevant.”). Here, we cannot say

that the delay in bringing the case to trial was entirely attributable to Thompson as a

matter of law. Because the trial court must recalculate whether this second Barker

factor weighs in her favor, we vacate the trial court’s judgment and remand for a

discretionary reconsideration, factual findings, and rebalancing of all four Barker

factors consistent with this opinion. See Porter, 288 Ga. at 534.

Judgment vacated and case remanded with direction. Andrews, P. J., and

Miller, J., concur.

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