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A split Court of Appeals of Indiana affirmed a trial court’s decision to not give a man discharge on three alcohol-related driving offenses after he did not receive the results of his blood test in a timely manner, finding his repeated requests for continuances caused his trial delays and the state was not responsible for pushing his trial date past Criminal Rule 4(C)’s one-year deadline.
Following his March 2021 arrest for operating a vehicle while intoxicated, Thang Bik submitted to a blood draw.
On March 15, 2021, the state charged Bik with three alcohol-related offenses, which included operating a vehicle with an “alcohol concentration equivalent” of 0.15 grams or more. The state alleged Bik had a prior OWI conviction, enhancing the three charges to Class D felonies, according to court records.
Because Bik speaks Burmese Hakka-Chin, he needed a translator throughout the proceedings. He didn’t appear for his first hearing.
At the rescheduled hearing, he entered a plea of not guilty and was appointed a public defender.
Even though a specific attorney within the public defender agency was assigned to Bik’s case, substitute counsel covered Bik’s first nine pretrial conferences.
During the first seven conferences, substitute counsel requested another pretrial conference.
By the eighth pretrial conference in January 2022, his case was assigned to another attorney within the public defender agency, but substitute counsel appeared and requested another pretrial conference. The same thing occurred at the ninth conference.
At the 10th pretrial conference Bik’s assigned counsel informed the Marion Superior Court that Bik was still awaiting his blood results.
Almost 400 days after Bik was charged, he filed a motion for discharge under Indiana Criminal Rule 4(C). He argued that the state failed to bring him to trial within a year. Two days later, the state received Bik’s blood test results.
At the discharge hearing, the trial court recognized that the state had a duty to provide Bik with his blood test results, but it also characterized Bik’s decision to request pretrial conferences rather than a trial date as a “trial strategy.”
The trial court attributed the delay to Bik, denied his motion for discharge and certified his motion for interlocutory appeal.
The issue brought to the appellate court was whether the trial court erred in denying Bik’s motion for discharge under Indiana Criminal Rule 4(C).
“We attribute to Bik the delay effected by his seven non-discovery-related continuances, which we calculate as the 273 days between the first pretrial conference on May 3, 2021, and the eighth pretrial conference on January 31, 2022. Bik also concedes that he should be attributed the 21-day delay between his missed initial hearing on March 29, 2021, and his rescheduled hearing on April 19, 2021,” Judge Leanna Weissmann wrote for the majority. “Thus, the State was well within Criminal Rule 4(C)’s one-year deadline when Bik filed his motion for discharge.”
The appellate court affirmed the trial court’s judgment and remanded for further proceedings.
Judge Elaine Brown concurred but Judge L. Mark Bailey dissented with a separate opinion.
Bailey wrote that it was apparent from Bik’s April 19, 2021, initial hearing that the state had no blood test results.
Bik could have requested a speedy trial without having received discovery from the state, but it would be an untenable position for a defendant when the state simply fails to produce its proof, Bailey said.
“The application of Criminal Rule 4 should not distill to gamesmanship. The pertinent inquiry is whether there was ‘delay [other than nineteen days] caused by [Bik’s] act?’ Crim. R. 4(C). In my opinion, there was not, and Bik is entitled to discharge,” Bailey wrote.
This case is Thang C. Bik v. State of Indiana, 22A-CR-1932.
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