The start of a trial of a Clearfield man charged with aggravated assault by vehicle while driving under the influence was delayed yesterday because related paperwork and test results could not be found.
A bench trial was scheduled to begin Thursday against Tim A. Ogden, 56, of Clearfield who is charged with aggravated assault by vehicle while DUI, a felony of the second degree, DUI, driving a vehicle at a safe speed, careless driving and reckless driving, all of which are misdemeanors.
According to the affidavit of probable cause, on Dec. 3, 2017 at 4:08 p.m. state police arrived on scene of a crash on Rockton Mountain Highway, Pine Township.
Troopers discovered a 1999 Ford Ranger pickup had collided with a Buick Rendezvous and Ogden, who was driving the Ford, was being transported to Penn Highlands DuBois for treatment.
An EMT on the scene said they found an open beer can in the center console of the Ford and Ogden had the smell of alcohol on his person and he was stumbling while he walked.
Troopers interviewed Ogden at Penn Highlands DuBois and he said he didn’t know where he was and didn’t know he was in an accident, but he was able to provide them with his name, birthday and Social Security number.
Ogden’s speech was also slurred, his eyes were glassy and he smelled of alcohol.
He was asked to voluntarily submit to chemical testing three times but each time he refused so troopers read Ogden the DL-26, which is the form provided by the state Department of Transportation when a suspect refuses chemical testing.
The DL-26 is read to the defendant and signed by the arresting officer.
The state police then applied and received a search warrant for to have Ogden’s blood tested, and Penn Highlands DuBois determined Ogden’s blood alcohol content was 0.135 percent, according to the affidavit.
The driver of the other vehicle sustained a wrist injury requiring support pins be inserted into the wrist for at least six weeks.
Yesterday, at the beginning of the trial, First Assistant District Attorney Leanne Nedza argued for a motion to add the charge of aggravated assault by vehicle, a felony of the third degree, and recklessly endangering another person, a misdemeanor.
She argued that this is allowed because the new charges arise from the same actions and lesser or included to the originally filed charges.
Odgen’s attorney, Fred Neiswender of Clearfield, argued that the new charges are related charges, not lesser or included charges. And he argued that filing these at the last minute significantly impedes their ability to defend against them. He said he didn’t receive notice of the motion until two days ago.
Judge Ammerman said he received notice of it yesterday.
Ammerman asked Nedza why adding the additional aggravated assault by vehicle is critical to her case.
Nedza said when preparing for the case, she called Penn Highlands DuBois to obtain information on what method of blood testing was used, who performed the testing and the qualifications of who performed the testing etc. — but she was told that this information had been “purged.”
Also, the DL-26 that was signed by the arresting trooper is now missing — Nedza still has the testimony of the trooper stating that Ogden refused chemical testing.
Because of these circumstances, Nedza said it is not assured the commonwealth would be able to prove the defendant was DUI beyond a reasonable doubt, which would cause them to lose the aggravated assault by vehicle while DUI charge. Therefore, it was critical to the commonwealth’s case that the aggravated assault by vehicle be added.
Ammerman said he understands a new district attorney’s administration was only sworn in on Jan. 6, but this doesn’t change the responsibilities of the commonwealth and with this case pending for two years, the commonwealth had opportunity to file the motion beforehand. Ammerman said doing so this late does prejudice the defense, and he denied the commonwealth’s motion.
Nedza then said she is certifying the case for appeal and asked for the trial to be postponed until her appeal could be heard by the superior court.
Neiswender objected to the motion, arguing the defense is ready to proceed today.
Ammerman said in his 30 plus years of working as a judge or district attorney, he has never seen something like this before and said the court would take a recess to give Nedza opportunity to provide the legal justification for the move.
After about 30 minutes, Ammerman reconvened court and Nedza asked Ammerman to reconsider his decision to deny her motion to add the additional charges.
When Ammerman refused, she read from the law that states the commonwealth can ask for a continuance to file an appeal as long as the commonwealth’s representative certifies the case would be significantly handicapped without the appeal.
Nedza then certified to the court that the commonwealth’s case would be handicapped without the appeal.
“I don’t like it, but I do think they have the right to file the appeal,” Ammerman said.
He then continued the trial pending the outcome of the appeal.
Following adjournment, Neiswender told The Progress that he was disappointed in the result in that the defense was ready to proceed and the commonwealth was not.